Constitutional Self-determination

The crucial difference between colonial and constitutional self-determination lies in the fact that in case of the former, the right to secession is based directly in international law. In the latter, the claim to self-determination is derived from a constitutional arrangement that establishes a separate legal personality for component parts of the overall state. The constitution of a state is taken to be a manifestation of the sovereign will of the state population. International law now appears to take note of these features of domestic constitutional law and gives effect to them. However, it is not constitutive of the claim to constitutional self-determination, which remains based in domestic law. 

It is possible to distinguish three different types of constitutional self-determination  

It will be convenient to consider each of these in turn. 

A few constitutions will determine that certain nominated constituent entities enjoy a right to external self-determination. This is by no means an entirely novel phenomenon. For instance, the 1947 Constitution of the Union of Burma, provided  

Save as otherwise expressly provided in this Constitution or in any Act of Parliament made under section 199, every State shall have the right to secede from the Union in accordance with the conditions hereinafter prescribed. 

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This monograph will first illuminate the restrictive nature of the doctrine of self-determination. It will then turn to relatively new concepts, such as constitutional self-determination and remedial secession. Finally, the remainder of the book will be devoted to the analysis of recent settlement practice in the area, addressing the question of whether this profusion of settlements has helped to overcome the damaging consequences of the restrictive doctrine of self-determination for the international system. 

An exception to this rule would relate to a self-determination entity that decides to associate, but not integrate, with another state, rather than opting for independence. Through association, the self-determination status of the entity is retained, or one might say it is transformed into a case of constitutional self-determination. However, there is very little practice of this kind. 

An interesting sub-species of express constitutional self-determination is conditional self-determination. For instance, the Law on the Special Legal Status of Gagauzia describes that autonomous territorial unit within Moldova as an integral part of the Republic (Article 1(1)). Nevertheless ... 

The identity of this conditional constitutional self-determination unit is also defined in an unusual way. Localities in which (ethnic) Gagauzes constitute less than 50 percent of the population may be included in the autonomous territorial unit on the basis of the freely expressed will of a majority of the electorate revealed during a local referendum (Article 5(2)). Accordingly, this would be one of the more recent examples where the will of the people does, after all, triumph over previous administrative/territorial arrangements. This is an interesting departure from the classical colonial self-determination practice. ... 

Ordinarily, constitutional self-determination will assign a right to secession only to federal-type territorial units, such as constituent republics, that are clearly defined in terms of territory. The classical example is furnished in the constitution of the former Union of Soviet Socialist Republics (USSR). In accordance with Leninist... 

Hence, it appeared initially that not all federal units within a federation providing for express self-determination status were entitled to self-determination. Express constitutional self-determination would generally apply only to the entities that were very specihcally nominated in the constitution, such as full federal republics.However, in the wake of Kosovo s eventual independence, this view had to be adjusted. 

Although the construction of the doctrine of express constitutional self-determination was limited at the point of its inception, it has been regarded with considerable scepticism by some governments. The Yugoslav precedent in particular had some impact on attempts to negotiate settlements in a number of other secessionist conflicts. 

The option of a federal-type solution has since proven unacceptable to some central governments. They presume that the granting of federal status to an entity in exchange for cessation of the conflict will inevitably be the first step to an invocation of constitutional self-determination and to eventual independence. To overcome this obstacle, some federal or even confederal settlements have been counter-balanced with eternity clauses. Such clauses confirm that any right to self-determination that may previously have been held by the secessionist unity are expended in the agreement on a settlement. The federal union is thereby rendered... 

It is also possible to envisage a form of implied constitutional self-determination status. This would occur where a distinct nation or people inhabit a clearly constitutionally defined territory. Where the central government consents to the holding of a referendum on the issue of secession, or where such provisions are made in the constitution in the absence of an express reference to self-determination, there is an expectation that such a referendum would be respected by the central authorities. An example is furnished with reference to Scotland. Even in the absence of a written UK constitution, it is nevertheless clear that referenda on independence can be called with the agreement and cooperation of the central authorities. Should the result favour independence, it is likely that the outcome would attract a significant degree of international legitimacy. 

This view was very strongly confirmed by the Canadian Supreme Court in a reference concerning the possible secession of Quebec. Despite that fact that there is no express constitutional self-determination status for Quebec in the Canadian Constitution, the Court found that A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize .However, the Court also confirmed that independence is not an automatic result. Instead, both sides would have to engage in good faith negotiations about implementation of the decision to secede. 

While autonomy already raises governments concerns, federal-type solutions are even more difficult to achieve nowadays. As was noted above, autonomy is often traded for an express renunciation of self-determination and a confirmation of the permanent territorial unity of the state. Where a more elevated status, such as that of a federal republic or constituent unit of a confederation or state union is concerned, the stability of such an arrangement is even more difficult to assure. " In fact, the recent recognition of the doctrine of constitutional self-determination has made this more complicated. The Badinter Commission attached to the EU peace process for the former Yugoslavia had found that ""... 

Chechnya, too, had concluded a treaty with the Russian Federation. Although the entity was offered constitutional self-determination in the agreements of 1996-1997, to be actualised by the end of 2001, it was forcibly re-incorporated into the Russian Federation. Article 1 of the new Chechen Constitution adopted through a controversial referendum in Chechnya claims that ... 

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