The Hardest Part: Creating a Right of Secession

This chapter explores strategies to achieve acceptance of a right to secede, whether as a legal rule or as a model for individual states. Secession is a hard sell, and the principal battleground is moral and political. A shift in attitudes must precede the legal project; only then will people see doctrinal arguments lining up and making sense. And, after all, the goal is not a new legal right for its own sake, but a change in how societies and states behave. The chapter then considers why a formal right of secession is implausible, and what that implies about the best strategies to adopt—the narrow but real possibilities that exist. The path is indirect: It relies on transnational diffusion of norms, and for this people can draw lessons from once-improbable projects that have become orthodoxies, such as decolonization and human rights; also, recent secession attempts suggest that constitutional projects could serve as models. The path leads through many small changes, rather than a single, quixotic swerve toward a new legal rule. But because the existing global norm limits the ability to create change within states, people cannot abandon the idea of a new rule: Advocates of secession need a point of triangulation outside the state to advance their cause, and that point will be found in international law.

The Failure of a Flourishing Idea: The Decadence of Self-Determination

This chapter traces the origins of current commitments about territory and peoples. The rules and assumptions governing how people think about territory and political community are not immutable; in fact they are quite recent in origin. Their history, like that of many ideas, is full of reversals of meaning. Thus, the chapter examines how the legal doctrines and political commitments developed historically, to see how people have arrived at the particular system of rules about territory, states, and people that exists today. At the center of this system is the idea of self-determination, but the broader frame concerns rules and justifications for forming and preserving states. It is possible to talk about new states or even secession without invoking self-determination. The term will prove useful, however, when one considers the reasons for making new states: One will find that self-determination provides the underlying logic for why people might want to make new states at all.

People, Territory, Plebiscite: The Main Features—Objections and Answers

This chapter discusses three main aspects of the new rule: people, territory, and plebiscite. It also considers some objections to the new rule and its effects—including the possibility that it would make things worse. The chapter then answers those objections and provides a theoretical justification for the basic intuition that democratic decision-making by local majorities is a positive good. An important theme will emerge: In many respects, the new rule is flawed—in the same ways the current rule is. And in other respects, this flawed new rule offers something more in keeping with people's better natures. The new rule is principally designed to be used before a crisis; it provides a pathway for peaceful change so that crisis need not come.