From conflict to procedures: Taming independence referendums

Territorial conflicts arise as a matter of fact and require a response as a matter of law. Secession takes place irrespective of its constitutional permissibility and in such conflicts over sovereignty on a territory, law is in an awkward situation: implementing positive law would avoid legal challenges to sovereignty over a given territory, but on the other hand, as Mancini put it, “demonizing secession, turning it into a constitutional taboo, often adds fuel to secessionist claims”. Considering that the only legal response to conflicts are procedures, contemporary constitutional law devotes growing attention to conflicts of sovereignty, attempting to constitutionalising them. This is also the main message sent by the Supreme Court of Canada in its seminal Reference on the Secession of Québec, which inaugurated a functional and procedural approach to territorial conflicts over sovereignty and represents the cornerstone on which the contemporary (and still evolving) law of secession is based.

The majority of constitutions does not provide for a right to secession, except for very rare cases -such as art. 72 of the Soviet constitution 1977 or art. 39 of the Ethiopian constitution. Since the post-1989 wave of constitution-making, the referendum has become not only the main but often the exclusive means to address sovereignty claims. These referendums represented the real turning point for the countries concerned, i.e., nearly all former Soviet and former Yugoslav republics, such as Georgia and Ukraine. In some cases, these referendums were held under the international supervision of the European Union, like in Montenegro (2006) and South Sudan (2011). Referendums called to resolve independence and secession claims can be both successful and illegal. The best-known example of an agreed referendum on independence has been the one that took place in Scotland in September 2014. The Edinburgh Agreement (2012) provided the referendum on just two options (independence or status quo) and particularly noteworthy is the absence of any entrenchment for the referendum, the scope of the vote, and the exclusion of a third legal option between independence and status quo.

However, several independence referendums took place illegally, i.e., without the agreement between the affected territory and the central government. The most significant unknown referendum of this type took place in Catalonia on October 1, 2017. It was called by a law of the regional parliament and was immediately suspended by the Constitutional Court, which declared it unconstitutional. A final, sui generis example of independence referendum is represented by the so called “Brexit” in 2016. The Treaty on the European Union provides that withdrawing from the Union can happen “in accordance with its own constitutional requirements” (art. 50 TEU), but it was clear that the decision on leaving the EU was possible only by referendum, as the British membership in the EU was confirmed by referendum in 1975.

Referendums represent an important step in the evolution of constitutionalism -which ultimately means to regulate political processes with legal instruments- by institutionalising challenges that so far have been left outside the realm of law. Nowadays referendums are considered to be unavoidable to establish a new legal order as a source of democratic legitimacy. However, referendums have limits: they are too simplistic and ‘trivial’ when they are not supported by procedural entrenchments or by additional procedures. Furthermore, there is also the question of structural minorities: If decisions are to be made by a majority, especially if simple, without a quorum and extemporary, how can the rights of minorities be respected, even more if such minorities are territorial majorities?

This article was first published on the blog of the Centre on Constitutional Change.