International law and morality in the theory of secession

Journal of Ethics

Volumn 2, Issue 3, 1998, Pages 219-245

  Copp, David ^a  

^a BOWLING GREEN STATE UNIVERSITY   (United States)

Author keywords

International law; Morality; Plebiscites; Rights; Secession

Indexed keywords

EID: 18844374278     PISSN: 13824554     EISSN: 15728609     Source Type: Journal    
DOI: 10.1023/A:1009732228806     Document Type: Article

References (42)

1. Allen Buchanan, Secession, The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (Boulder: Westview Press, 1991).
2. Allen Buchanan, "Self-Determination, Secession, and the Rule of Law," in Robert McKim and Jeff McMahan (eds.), The Morality ofNationalism (New York: Oxford University Press, 1997), pp. 301-323
3. Allen Buchanan, "Theories of Secession," Philosophy and Public Affairs 26 (1997), pp. 31-61.
4. Buchanan, "Theories of Secession," pp. 31-32.
5. Buchanan, "Theories of Secession,", Ibid., p. 32.
6. Buchanan, "Theories of Secession,", Ibid., p. 32.
7. Buchanan, "Theories of Secession,", Ibid., p. 34.
8. Ibid., pp. 34-35. Buchanan writes "if and only if," where I write "only if," but he adds in a footnote that a Remedial Right Only Theory can add additional necessary conditions for the right. He mentions some of these conditions in "Self-Determination, Secession, and the Rule of Law," p. 322, fn. 11.
9. Buchanan, "Theories of Secession," pp. 34-36.
10. Buchanan, Secession, pp. 27-80.
11. Avishai Margalit and Joseph Raz, "National Self-Determination," The Journal of Philosophy 86 (1990), pp. 439-161. Buchanan, "Theories of Secession," p. 38.
12. Buchanan, "Theories ofSecession," pp. 38-40.
13. David Copp, "Do Nations Have the Right of Self-Determination?" in Stanley G. French (ed.), Philosophers Look at Canadian Confederation (Montreal: Canadian Philosophical Association, 1979), pp. 71-95.
14. And David Copp, "The Right of Communal Self-Determination," in Robert McKim and Jeff McMahan (eds.), The Morality of Nationalism (New York: Oxford University Press, 1997), pp. 277-300.
15. Harry Beran, The Consent Theory ofPolitical Obligation (London: Croom Helm, 1987), p. 42.
16. Christopher Wellman, "A Defense of Secession and Political Self-Determination," Philosophy and Public Affairs 24 (1995), pp. 357-372.
17. See David Copp, "The Right of Communal Self-Determination." With some justice, my view could be described as a kind of Ascriptive Theory, but it is more intuitively regarded as an Associative Theory, so this is how I will describe it.
18. I have argued for this theory, and explained it in more detail, in David Copp, "The Right of Communal Self-Determination." I also presented a version of the theory in David Copp, "Do Nations Have the Right of Self-Determination?" Wellman has a similar view. See his "A Defense of Secession and Political Self-Determination
19. The term "liberty" is sometimes used for mere permissions. I follow Judith Jarvis Thomson in calling mere permissions "privileges" and in reserving the term "liberty" for protected permissions. For further discussion.
20. see Judith Jarvis Thomson, The Realm of Rights (Cambridge: Harvard University Press, 1990), Chapter One.
21. and Wesley Newcomb Hohfeld, Fundamental Legal Conceptions, ed. Walter Wheeler Cook (New Haven: Yale University Press, 1919).
22. Perhaps some groups have a right to secede from a state in order to join an adjacent state, rather than to constitute a state for themselves, but I shall not consider such cases. Such cases require that the adjacent state be prepared to accept the secessionist group, so they raise complications that are not at issue in simple cases of secession. There might also be cases in which a group of anarchists desires to secede from a state because they want to live outside the jurisdiction of any state. I shall not consider cases of this kind.
23. I provide a more articulated account of the concept of a society in David Copp, Morality, Normativity, and Society (New York: Oxford University Press, 1995), Chapter 7.
24. See the references in note 12.
25. Buchanan, "Theories of Secession," p. 37. In "Self-Determination, Secession, and the Rule of Law," pp. 310-313, Buchanan discusses the additional ground of "discriminatory redistribution," which he believes can also justify secession.
26. Recall that I am simplifying by supposing the issue is a right to secede and to form a state for the secessionist group. I am setting to one side issues about a right to secede in order to join a neighboring state that is willing to accept the secessionist group. The Northern Ireland situation is an example of a case of the kind I am setting to one side.
27. For a brief account of the court, see Columbia Encyclopedia, Fifth Edition (New York: Columbia University Press, 1993), p. 1347. My proposal would require, for one thing, amending Article 34, Section 1, of the Statute of the International Court of Justice.
28. See the Columbia Encyclopedia.
29. I am grateful to Sam Black for help with the issue of enforcement.
30. Buchanan discusses "just secession" in "Self- Determination, Secession, and the Rule of Law," p. 308.
31. Buchanan, "Theories ofSecession," pp. 42, 45.
32. Secessionist groups might object that my proposal gives too much authority to an international court in what is essentially a domestic matter that ought to be decided withinthe group itself. But secessionist groups would have less political influence in any processthat might lead to a change in international law than existing states do.
33. According to the Columbia Encyclopedia, the Court has jurisdiction only in cases where each party has consented to its having jurisdiction, either in the specific case, or in advance for all cases involving it.
34. In 1933, the ancestor of the International Court, the Permanent Court of International Justice, awarded Denmark sovereignty over the north coast of Greenland and denied Norway's claim, and this ruling was accepted. Columbia Encyclopedia, p. 3000.
35. Buchanan, "Theories of Secession," pp. 46-18.
36. Buchanan, "Self-Determination, Secession, and the Rule of Law," p. 317.
37. Buchanan, "Self-Determination, Secession, and the Rule of Law," Ibid., p. 48.
38. Buchanan waffles on this point by saying "To the extent that the injustices cited by a Remedial Right Only Theory are of the sort that international law regards as depriving a state of legitimacy, the right to secede is consistent with the principle of the territorial integrity of existing (legitimate) states." He goes on, however, to claim that Remedial Right Only Theories, "Unlike Primary Right Theories, ..are consistent with, rather than in direct opposition to" that principle. Ibid., pp. 50-51.
39. Buchanan, "Self-Determination, Secession, and the Rule of Law," Ibid., p. 37.
40. Ibid., p. 52. In this paragraph, I summarize Buchanan's argument at ibid., pp. 52-55.
41. I explain this idea in my "Social Unity and the Identity of Persons," unpublished manuscript.
42. I am grateful to Sam Black, J. Angelo Corlett, Edwin Levy, Stephen Pink, and Christopher Wellman for very helpful comments on an earlier draft of this paper.