Calnan on jurisprudence
Essays on jurisprudence from an English law perspective
Secession is an important topic at the moment. The recent departure of the United Kingdom from the European Union and the possibility that Scotland might withdraw from the United Kingdom illustrate the difficulties. When can one state remove itself from its union with another?
Ultimately, secession is a political act but, unless it is to be completely arbitrary, it should be possible to establish some ground rules—even if they have to be stated at quite a high level of generality.
In some cases, the answer to the question is relatively straightforward. The treaty creating the union can provide for its own dissolution. The European Union is a case in point. The Brexit process was protracted and difficult, but it was conducted in accordance with rules laid down in the treaty which gave member states a power to secede. The decision to exercise that power was a political act but, once it had been triggered, the process was determined in advance.
But what if the treaty establishing the union does not provide for its demise? Can any principles be established to determine how the process should be effected?
Consider the following example. Many centuries ago, the parliaments of the Kingdom of Ruritania and the Grand Duchy of Hentzau entered into a union. The treaty establishing the union says nothing about its dissolution. Now, some politicians in Ruritania want it to secede from the union. Is it possible to establish any principles on the basis of which a decision can be taken?
The starting point is that the decision is that of the union, not of either Ruritania or Hentzau. The union can only be dissolved by those with the power to make decisions on behalf of the union—the government and parliament of the union. The individual states gave up the power to secede unilaterally when they entered into a union which did not contain a power of dissolution.
The fact that the union does not provide for dissolution does not prevent it being dissolved. The union must have the power to dissolve itself. Indeed, that would be the case even if the union were expressed to be indissoluble. The words of the playwright Tom Stoppard are, as ever, instructive (if slightly misquoted): “That’s the trouble with eternity. Where’s it all going to end?”
It follows that the union can be dissolved, but only by the government and parliament of the union. So the question then becomes whether it should be done. That is a political question, but it is still appropriate to consider what factors should be taken into account in reaching a decision.
Let us assume that it can be established that a majority of the voters of Ruritania want to end the union. Should that be sufficient to persuade the government of the union that it should be dissolved? Would a bare majority be sufficient? What about those who cannot or do not vote? And should the decision be taken on the basis of a single poll at a single time?
And what about the elephant in the room—the people of Hentzau? Should they be consulted? What if they want the union to continue?
The decision is that of the government of the union. In taking that decision they must exercise their powers in the interests of all of the people of the union. If it becomes necessary to establish the views of the people in a referendum, it must surely be a referendum of all of the people. As befits a union of states in Mitteleuropa, the principle is clear: “Wir sind ein Volk”.
© Norton Rose Fulbright LLP 2021