Scotland, Catalonia and the Constitutional Taboo of Secession

Conventional wisdom suggests that national constitutional orders do not allow secessions. Indeed, the vast majority of constitutions are either silent on the issue of secession or they explicitly prohibit it. For instance, Article 3 of the Turkish Constitution declares that the ‘Turkish State, with its territory and nation, is an indivisible entity.’ Similarly, the Preamble of the Serbian Constitution declares that Kosovo ‘is an integral part of the territory of Serbia’. Of course, that provision did not stop Kosovo from unilaterally declaring its independence and from receiving 113 international recognitions so far.

Secession, however, should not be understood as an absolute constitutional taboo. There are some constitutional orders that allow for a consensual and democratic process of partition. Take for example, Article 39 of the Ethiopian constitution that provides ‘every nation, nationality or people in Ethiopia’ with ‘the unrestricted right to self-determination up to secession.’ Even the miniscule State of Liechtenstein allows individual municipalities to secede from the union according to Article 4 of its constitution.

Similarly, the UK constitutional order allows the secession of one of its regions. Westminster has formally conceded that Northern Ireland can secede from the United Kingdom to join a united Ireland, if its people, and the people of the Irish Republic, voting separately, agree to this. However, a referendum for the reunification of Ireland can only be organised if ‘it appears likely to [the UK Secretary of State] that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.’ Theresa Villiers, the former Northern Ireland Secretary made clear that, according to her, ‘there is nothing to indicate that there is majority support for a poll.’

The situation in Scotland is quite different ...

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