Abstract
This article grounds the morality of secession on two forms of collective self-determination: one manifests the communal goods of secessionists and the other the value of shared political institutions. Secession is morally valuable when the two are incompatible such that the claimant confronts persistent alienation. For remedial rights theories, only ‘strict violations’ permit secession. For primary rights theories, ‘broad violations’ grant secession as a last resort, and so this thesis, ‘collective self-determination as nonalienation’, should be accepted regardless. First, as the two collective forms of self-determination develop two forms of territorial rights, it supplements cogent accounts of territorial justification for, and claims to, secession. Second, as persistent alienation can have both strict and broad interpretations, it also provides moral grounds shared by remedial and primary rights theories if they concede the value of collective self-determination. The strict sense refers to persistent coercion that violates personal autonomy and nullifies state legitimacy. The broad interpretation denotes long-term political frustration caused by unreasonable prevention of greater collective autonomy that even legitimate states may achieve. Third, to verify whether this amounts to long-term political frustration and to address persistent alienation, secession should be regarded as a last resort, despite its support from the primary rights account.
1 Introduction
Political theorists have debated what right to secession we should uphold. There are two main schools of thought. The primary rights camp argues that secession is a legitimate expression of the freedom to collective autonomy insofar as seceded and seceding states can maintain their basic social functions. The justification of the right is independent of whether there is severe injustice, and the right can be exercised unilaterally without the state’s consent, even if that state is legitimate. By contrast, the remedial rights camp contends that secession is justified only if a corresponding primary right (e.g. a basic human right) is violated, because states derive their political legitimacy from protecting those rights. Therefore, secession is merely a remedy for a state’s failure to achieve legitimacy.
I argue that there are reasons to put this classic concern aside and work instead on a more general inquiry into the moral basis of secession, upon which the two camps might agree if they concede the value of collective self-determination proposed in this paper. As the inquiry will show, what makes secession morally valuable and distinct from other political activities is a particular moral capacity inherent in territorial groups to pursue collective self-determination as nonalienation when they are subject to a bigger political community.
There are two motives for this article. First, recent research on territorial rights sheds new light on the issue. Translating the right of secession into a contest of territorial claims between secessionists and states is an intuitive approach because secessionists aim to defy states’ exercise of territorial rights and to build up territorial sovereignty of their own. Yet no theory of secession has so far successfully appealed to an account of territorial rights. Second, the moral basis entailed by existing theories is either incoherent (arguing for inconsistent moral claims or implying a biased understanding of secession) or incomplete (failing to present a cogent territorial justification grounding secession in specific territories or lacking detail in terms of what form of self-determination makes secession morally distinct from other such movements). Let me illustrate these criticisms below.
Primary rights theories follow the logic of freedom to, which emphasises that (1) secession manifests the deontic value of collective autonomy, which does not necessarily contradict social security; thus (2) the freedom to collective autonomy does not necessarily conflict with state legitimacy, so (3) secession can take place even if the host state is legitimate, and (4) theories should articulate what constraints on the freedom are justified, normally referring to foreseeable injustice or the failure to sustain a state’s basic social functions.[1] Two variants, plebiscitarianism and ascriptivism, arise from different qualifications of claimants. Plebiscitary theories argue that the organisation of a state should accord with people’s associational preference, so any territorial group is entitled to secede if they vote accordingly in a referendum. Ascriptive theorists, though in favour of democratic independence, contend that claimants should also share collective features such as nationality, a common societal culture or the idea of encompassing people.[2] These, they argue, present a strong hypothetical case for a new mononational state, thus implying mononational states to be desirable political entities.[3]
Primary rights theories are correct to associate the moral basis with collective autonomy, but they lack completeness. For plebiscitarianism, a mere preference for association falls short of settling the boundaries of an electorate due to the alleged boundary problem in democratic theories. Majoritarian rule is just a decision-making mechanism: the scope of an electorate to which the mechanism applies cannot be answered by the mechanism itself. Beran proposes recursive secession to address this problem, firstly, asking separatists to specify a particular territory and, secondly, to show that such a territory is home to a population, the majority of whom wish to secede (1987, 39–42). However, as recognised even by Wellman, the theoretical basis of the proposal (consent) is incompatible with political stability (2005, 14–16). Further, if Beran believes it is morally wrong to let the whole population of a host state determine an act of secession, why is it right to let separatists determine the boundary of the relevant seceding territory? Moreover, the minority thus created within a proposed secessionist region is normally unionist. Further secession would just create enclaves within seceding states, which contradicts Beran’s condition that secession should not proceed if such an enclave would be created. Beran’s method meets the request of separatists at the expense of unionists’ territorial interests. Ascriptive theories appear to tackle this problem by ascribing distinct collective features to the claimants.[4] For instance, Miller argues that a nation should build a state when a land manifests the material and symbolic values of its nationality. This account still fails (Miller 2012, 257–62). As Stilz argues, such territorial justification conflates property with territory in a normative sense (Stilz 2011, 576–78). Even though settlement activities such as agriculture or mining change a landscape significantly, by which we may concede that a group ‘owns’ a land through labour, there is still a conceptual difference between property and territory: ownership falls short of entitling the owner to create or enforce laws within a political territory.
Remedialism employs the logic of freedom from and institutional reasoning. The remedialist Buchanan argues that, because secession demands international recognition, a justified account of the right should not undermine the basic framework of international law. Given that international law is a state-led institutional scheme, its primary concern should be how to justify state legitimacy and to legitimate its hold over territory. He proposes justice-based political legitimacy and argues that a state territory should not be ceded if the state meets that criterion. Securing freedom from injustice thus becomes the primary goal of remedialism, by which (unilateral) secession should be ruled out if states are politically legitimate. The argument runs as follows. First, political legitimacy is contingent upon a state protecting basic justice. Failing to do so (and thus nullifying their authority) refers to serious violations of basic human rights, persistent breaches of intrastate autonomy arrangements or annexation (Buchanan 2004/2007, 145–161, 247–260). Second, even though self-determination is valuable, sovereign independence is neither the necessary nor the best means to achieve it. Third, recognising the primary right to secede in international law would destabilise territorial integrity and create international chaos. Therefore, secession derives its value from protecting the core value of international law (i.e. human rights) and becomes a remedy to people suffering grave injustice.
However, the moral basis of Buchanan’s thesis is incomplete. His justice-based legitimacy, which is a general criterion applying to all states, fails to ground authority in a particular territory. This opens the question of why a state’s exercise of power should be limited within particular territorial boundaries if it is able to achieve justice outside its current borders. Since Buchanan’s theory lacks the theoretical resources to address this question, Stilz argues it amounts to an argument in favour of benign annexation whenever justice could be promoted in annexed territories (2019, 91). This proposal is also incoherent. First, with no account of the nature of legitimate secessionists, it seems any cultural or immigrant group, whenever they suffer injustice, is entitled to secede.[5] Second, as Catala points out, two conditions for secession (i.e. resistance to annexation and endorsement of intrastate autonomy) contradict Buchanan’s initial claim, namely, that self-determination issues are confined to intrastate autonomy mechanisms and secession should be based on (in)justice alone (2013, 77–79). These two conditions do not necessarily produce grave injustice and imply the recognition of self-determination as an important constituent of legitimacy or territorial entitlement, recognised implicitly by Buchanan.
I have summarised three prototheories of secession rooted in voluntary association, communitarian goods and justice respectively. Each fails to articulate a coherent moral basis for secession. Some theorists (Kymlicka 2000; Norman 2006; Patten 2002; Seymour 2007) hence argue for a hybrid approach based on the following assumptions. First, a qualified claimant to secession must hold some intrinsic group characteristics that distinguish it from groups such as temporary migrants or nonterritorially-concentrated cultural groups. Second, secession is a matter of self-determination that should commit states to internal self-determination, in addition to minimal justice. That means we should recognise serious violations of self-determination, or in Patten’s (2002) words ‘the failure of recognition’ (561–567), as just cause for secession. Third, although many ideas from primary rights theories are taken into account, secession is merely of remedial value, because once a state is willing to endorse multinational federalism and secure internal self-determination for all nations, secession is not a remedy for self-determination but an expression of disrespect for equal recognition of national identity. This nationalist remedialism seems to balance the prototheories. It acknowledges the nationalist qualification of claimants and the significance of collective autonomy and attempts to resolve the conflicts between different forms of self-determination. Unfortunately, the thesis is incoherent, as Patten (2002) assumes (inadequately) that secession constitutes a situation ‘in which a majority gets all of what they want while the minority get none’ (579). That is, the central issue for Patten is whether identity pluralism, which is secured by multinational federalism, can be realised in society. If that ideal can be achieved in existing states where multinational federalism is implemented, then, Vaca and Artiga (2021, 23–25) argue, seceding states committed to that form of polity can also secure this ideal. Therefore, the exercise of the primary right to secede would not violate equal recognition, provided the would-be state is committed to multinational federalism.
The moral bases underlying the existing theories of secession are, as illustrated, all problematic. We thus have reason to revisit the morality of secession before judging what right we should uphold. This article will proceed as follows. Section 2 investigates to what account of territorial rights theories of secession should subscribe, in which I will argue for my dualist view based on Moore’s and Stilz’s theories. Section 3 identifies the moral basis of secession with collective self-determination as nonalienation and unfolds some implications for existing accounts of secession. Overall, my thesis outlines the moral ground for secession no matter which right one tends to support. Strict violations of this moral ground suffice for remedial rights theorists to grant secession if they recognise the value of collective self-determination appropriately. Broad violations of it would not only satisfy the central thesis of primary rights theorists but also make them take secession as a last resort.
2 A Dualist Account of Territorial Rights
Territorial rights are rights to exercise political authority over a territory. This concept, according to Buchanan (2004/2007) and Brilmayer (1991), is key to understanding how and why a claim to self-determination or justice could legitimise the occupation of a territory. Most contemporary theorists hold that state territory should be a particular geographical domain of jurisdictional authority, within which a state can claim the rights to border control, natural resources and jurisdiction as the supreme arbiter of political authority.[6] Yet state territory is not owned by a state as property: we do not ask a property-owner to treat their property morally, but we do require states to treat their territories and citizens in certain moral fashions. Ripstein (2017) calls this the ‘internal norm of sovereignty’ (243–268), by which morality prescribes that states’ exercise of power should be constrained by moral commitments to the interests of subjects, in addition to universal moral laws.
That is, the state does not hold territory as its property and so, in a normative sense, is not necessarily the ultimate holder of territorial rights. Rather, the state exercises territorial rights on behalf of the people living there, and the rights-holder, once specified, is entitled to claim jurisdictional authority over the territory. In this sense, territorial rights address secession by identifying who is entitled to claim jurisdictional authority over disputed lands. However, as I will show, because there are two forms of collective self-determination at stake, the nature of any eventual territorial settlement is complicated. Moreover, given that territorial rights are further rooted in occupancy rights, which refer to the basic interests in continuing to settle in, and control, land for the sake of social, cultural and economic development, it is reasonable to propose different methods of exercising control and so prescribe multiple holders of jurisdictional authority over different types of political affairs. This is the basis of my dualist account of territorial rights.
2.1 Two Forms of Collective Self-Determination
Secession normally implies conflict between two identities. First, state-wide identity implies (an account of) institutional collective self-determination (ICS), according to which almost all subjects anticipate sharing the same society with a common life project or take such a commitment for granted. This not only manifests the moral value of shared institutions, but also legitimates some ‘top-down’ coercion undertaken by the state. ICS does not amount to general functions such as the provision of a fair judicial system or functioning social infrastructure but prescribes that the basic social structure should create certain mutually beneficial social conditions and represent a shared political will enabling citizens’ personal autonomy. Theorised as such, ICS could be the basis for the statist perspective of territorial rights.
Fulfilling ICS inevitably encounters the moral treatment of substate people. This term might refer to indigenous people, people who have lost previous political institutions due to some historical injustice done by their host states, or a group whose distinct identity has formed in the face of the states’ unjust policies. We thus derive (an account of) communal collective self-determination (CCS) as the second, bottom-up demand for self-rule. CCS is associated with communal values not fully compatible with the wishes of the majority. For instance, indigenous people might want to practice common ownership of natural resources, which challenges the very idea of private ownership. Further, CCS can be developed independently from what host states recognise because it is based upon the identification of co-members, whose shared group identity and communal history has its own genealogy, attached generally to a specific location (Tibetans or Scots are cases in point). In the next Section I will delineate how CCS can demand self-government from ICS and so entail the secessionist perspective of territorial rights.
It is noteworthy to compare ICS and CCS with two often-mentioned dichotomies: external versus internal self-determination, and constitutive versus ongoing self-determination. Let me begin with the latter. Both Anaya and Moore have emphasised that when people claim self-determination it is necessary to understand what is meant by this term (Anaya 1996, 81; Moore 2020b, 4). It may refer to the constitutive account under which a group decides to review or elevate their political status (i.e. whether it should be an independent state or a distinct nation recognised by the constitution) or ongoing self-determination considering the completeness of self-government on certain areas (e.g. religion, language, culture, etc.) that are significant to their community. The distinction is necessary because it clarifies that a claim to secede belongs to constitutive self-determination whose moral justification should not be conflated with the other, less demanding condition, whereby secession should not be taken for granted as the best means to deliver self-determination. While I fully acknowledge this distinction, my proposal works differently. Since I identify another countervailing self-determination (i.e. ICS) at work in secession, my proposal enlarges the scope of analysis and captures CCS and ICS that are mutually constrained, held by different agents and revealed significantly in secession.
My proposal also sheds new light on the traditional dichotomy between internal and external self-determination. External self-determination entails sovereign independence, namely, the right to rule on domestic affairs without foreign interference, provided that the state warrants internal self-determination. Internal self-determination implies partial, conditional collective autonomy; that is, citizens’ entitlement to control limited self-regarding issues such as culture or educational practices (Fisch 2015, 46–56). My proposal for CCS and ICS deepens this dichotomy by basing external self-determination upon ICS and internal self-determination upon CCS. First, external self-determination implies sovereign independence because immunity from foreign intervention is based on the achievement of ICS; that is, the protection of shared political will. Second, one way of securing internal self-determination is satisfying CCS, implying that the protection of shared political will is conditioned by the success of substate people in achieving collective self-determination. Third, given that both ICS and CCS have their respective territorial bases, the failure to meet CCS suffices for a substate people to claim secession, because the territorial sovereignty of the host state has failed to take root in their lands and they, as legitimate holders of territorial rights, are entitled to form a new state on the lands they occupy. This account will be further elaborated in the next section.
2.2 A Dualist Account of Territorial Rights
I argue that CCS finds its territorial basis in Moore’s theory and ICS in Stilz’s. Synthesising the two produces my dualist account of territorial rights. This is plausible because, first, the two theories reflect two distinct perspectives on the issue. Moore distinguishes territorial rights from political legitimacy, treating territorial rights as a theory with which to justify legitimacy upon a particular territory (i.e. the particularity problem), but leaving aside to what account of legitimacy we should subscribe (2015, 62). Stilz, being a Kantian, tackles the particularity problem by theorising territorial ‘sovereignty’. In terms of the Moorean framework, Stilz’s theory combines political legitimacy with territorial rights. Second, Moore grounds her theory on the value of self-determination, whereas Stilz bases hers on legitimacy and self-determination. Synthesis is then plausible because (1) secession confronts CCS and ICS, each of which takes place in a territorial sovereign state; (2) Moore’s theory manifests CCS while Stilz’s manifests ICS; and so (3) the synthesis consists of Stilz’s account of state legitimacy and accounts of self-determination from both Stilz and Moore.
I shall call territorial rights held by the state ‘territorial sovereignty’, while the holding of territorial rights by substate people amounts to the justification of ‘jurisdictional authority’ over the lands they occupy. The argument runs as follows. First, a state legitimates its territorial sovereignty over a particular group of people and territory only if it successfully secures the subjects’ occupancy rights via protecting basic justice and collective self-determination. This statement consists of three substatements: (1) the occupancy right emerges when residency is established without wrongful occupation and is grounded, pre-institutionally, upon the importance of life plans significant to the well-being or personal autonomy of inhabitants; (2) in light of securing occupancy rights, the state should first secure minimal justice; and then (3) pursue collective self-determination, because basic justice alone cannot particularise rule over a specific group and territory. Second, the coexistence of ICS and CCS implies two forms of territorial attachment and two sets of rights-holders (Table 1): (1) a substate people is justified in holding jurisdictional authority against the state to CCS-related issues over the lands they occupy if the members share a common group identity, political history and are capable of forming a government; (2) another form of people, created by the state, also holds authority over general public affairs and ICS-related issues, across the whole state territory, if territorial attachment is produced by achieving the political autonomy of most subjects. Political autonomy refers to the social and political environment in which most citizens can exercise their personal autonomy in public spheres without persistent, alien coercion. Third, the territorial rights of the state are jointly held by ‘substate peoples’ and ‘citizens as a whole’. Secession, as a result, is morally justified when a claimant holds territorial rights and yet suffers persistent state alien coercion.
The structure of the dualist account of territorial rights, combining Stilz’s institutional and Moore’s communal views.
| Territorial sovereignty | Legitimate claimant | Legitimate occupation | |
|---|---|---|---|
| Jurisdictional authority over | General public affairs | The citizens/state | State territory |
| ICS | The citizens/state | State territory | |
| CCS | Substate peoples | Homelands of substate peoples | |
In what follows I concentrate on Moore’s and Stilz’s proposals respectively for the rights-holder and collective self-determination.[7]
2.2.1 Territorial Rights for CCS, the Potential Claimant to Secession, and Moore’s Theory
A self-determining people whose members share a group identity, history of political cooperation and capacity for self-government on a particular piece of land, Moore argues, is entitled to hold jurisdictional authority because these features together constitute a valuable communitarian relationship, generate associative duties prescribed and incumbent upon members, and entail an interest in stability of place. Provided that the initial occupation was not achieved via usurpation or conquest, their aspiration to build a common future with co-members on the same land gives rise to CCS and should be respected.[8] This idea has the following implications. First, because territorial rights are held by self-determining peoples, the state’s claim to territorial rights is then a bundle of group rights derived from those peoples and is justified if it succeeds as a vehicle of self-determination for them. This enables the state to better distribute identity-based resources in a way that takes account of peoples’ heartlands. Second, because the fulfilment of CCS is necessary for a state to hold territorial sovereignty, its sovereignty should be discounted whenever it fails to recognise those peoples as the constituents of its authority. In the context of secession, third, this implies that a Moorean people should be conceived of as potentially legitimate claimants to secession because they hold territorial rights as a basis for a state’s jurisdictional authority. Of course, these three conditions are insufficient to justify secession outright. Other caveats, such as respect for national minorities in a would-be state, are also necessary. Yet Moore’s characterisation of a self-determining people has demonstrated how CCS entitles a group to jurisdictional authority and so can become a territorial basis for secession.
However, Moore’s theory has some problems. Her proposal implies, potentially, an undue marginalisation of outsiders, disrespecting their personal or collective autonomy. Stilz (2019), given that the theory construes territorial rights as ‘group’ rights, a distinct line between homeland and nonhomeland peoples may be overemphasised and undermine the rights of the latter groups (53–54).[9] For instance, a group of immigrants may be forced to alter their cultural expression in public (say, a burka ban), simply because the homeland people do not regard such cultural expression as compatible with their group interests. This could be addressed if we could be confident that the state would be able to integrate different groups fairly. Yet prior to just integration, we must know why collective self-determination for all should be carried out within the existing states. Unfortunately, Moore says little about this. Her reply, that we can then examine whether the host state succeeds in being the vehicle of people’s collective self-determination, is insufficient. If sovereign independence or subjection to a foreign state, or even a world state constituting all nations, further enhanced their collective self-determination, people would have no substantial reason to stay within their host states. This could lead to consequentialist worries (such as those Buchanan expresses) about the perverse incentive to unlimited secession because collective self-determination is endorsed without due qualification.
Moore might rebut this charge by saying those challenges are a matter of political legitimacy rather than territorial rights. If a state’s legitimacy was morally justified, individuals (including self-determining peoples) would have the (prima facie) duty to obey the state’s rule. However, if that state attempted to continue to rule a particular group (i.e. its citizens), we need a justification of territorial sovereignty. Because the fair integration of different peoples is about the quality of political legitimacy, the exercise of state power should conform with justice or fairness, and her theory would not be undermined by such an attack. This reply, however, is only half right. The distinction between political legitimacy and territorial rights might address the concern about nonhomeland people and yet fall short of being a satisfactory account of self-determination. First, given that resource for collective self-determination is limited and that different peoples demand different communitarian goods, it is necessary to evaluate the state’s performance as a vehicle of self-determination and judge whether it is successful. Second, the criteria are necessary not only to deter unlimited secession, but also to counter status quo bias. If the benefits of remaining in host states for secessionists were articulated, we could understand why secession might not be good for secessionists from their perspective and avoid the criticism that collective self-determination should presumably take place in existing states. This leads us to consider ICS as the other dimension of self-determination for justified secession.
2.2.2 Territorial Rights for ICS, the Reason to Stay and Stilz’s Theory
Stilz approaches territorial rights from the perspective of territorial sovereignty and Kantianism. Territorial sovereignty, she argues, is morally justified if and only if the state secures occupancy rights, basic justice and political autonomy. First, given that the occupation of land is morally necessary for located life plans and personal autonomy, occupancy rights can and should be held individually. To protect rights and settle the conflict between different conceptions of the rights, a state providing basic justice is necessary. However, basic justice is insufficient to justify sovereignty rooted on a specific territory without collective self-determination. Unlike Moore, Stilz advocates that states should play a significant role in the constitution of collective self-determination. That is, the state should form subjects into a whole by building the political institutions of, for and by themselves. Stilz calls this ‘political autonomy’ or the endogenous approach to peoplehood, which, I argue, can account for ICS and its territorial dimension. Following Kant’s reasoning that the state is necessary to overcome the problem of unilateralism, the following examines political autonomy and why that idea alone falls short of a moral basis of secession.
Political autonomy follows the conditions of reasonable affirmation,[10] saying that ‘a citizen affirms participation when, upon reflection [and without duress], she endorses her intention to “play her part” in some joint enterprise’ (Stilz 2016, 112). First, participants must share some higher purpose beyond first-order desires. This indicates that most citizens have some reason to endorse collective decision-making and/or the higher, abstract ideals of political cooperation (say, a certain conception of social justice) over and above personal priorities. Second, the agent must be aware of how their participation contributes to political collaboration, through which citizens can gain a sense of accountability for and genuine connection to their social development. States should provide channels through which cooperation is open to most people. Finally, the means and outcomes of political participation should not violate basic justice or personal autonomy. Some means by which to revoke past policies should exist when the political agenda (e.g. anarchy or imperialism) violates basic justice or personal autonomy. For example, the rich may want tax policy to be more libertarian, while the middle class or the poor may favour high taxation to fund social welfare. The final policy could be said to follow reasonable affirmation and manifest political autonomy when they share, for instance, a Rawlsian conception of justice, reaching a decision after sufficient deliberation to be sure that the policy is moral. Consequently, both sides agree to compromise upon or even give up some of their first-order desires, and such a policy could be seen as a product of political autonomy.
Granting reasonable affirmation, political autonomy forms an actual cognitive attitude through which an agent can see their participation as valuable. This attitude is not desire-based. If it were, collective decision-making would have no doubt frustrated every subject and self-rule would never be possible. Instead, it suggests making participation meaningful, from which an agent derives a sense of valuable cooperation after reflecting on what/how they contribute, and what/how they gain, even though the outcome may not always reflect their desires. Participation is also self-directed, because the outcome is shaped by a shared political will corresponding to participants’ conception of (higher) political values for common enterprises. Political autonomy therefore becomes the last piece of territorial sovereignty, because, while most citizens reasonably affirm their political participation, the state helps them to achieve self-rule, groups them into a single people and holds territorial rights to the land they legitimately occupy. By appeal to political autonomy, we know how ICS should work, given that it refers to a common aspiration to live together and a political commitment shared by citizens.
The flip side of reasonable affirmation implies alienation from the shared will when some subjects cannot achieve political autonomy; that is, they no longer have a meaningful sense of cooperation or that they are part of society. Recall that citizens should gain a sense of valuable cooperation through sharing the higher purposes of common enterprise, participating politically and adhering to basic moral values. Now, if a substate people followed such a norm of political engagement and yet failed to obtain a sense of valued cooperation, their continuous compliance with sovereignty would amount to persistent alien coercion, generating a pro tanto reason for secession. I will elaborate that moral basis in the next section, having explained why Stilz’s theory alone fails to account for CCS.
The problem originates from Stilz’s individualist account of occupancy rights, under which the scope of state territory is an aggregation of individual occupations and the adjacent spaces they need for their (respective) located life plans. Consider the following scenario: a Moorean minority (that is, a group of individuals sharing a particular group identity, history of political cooperation and capable of self-government) faces an assimilation policy. Their claim to CCS falls short of any institutional support and the community faces the vast migration of nonmembers attached to a state-wide identity, who are encouraged by the policy to mingle with the minority. How would Stilz’s theory view this internal settlement? It seems the migrants are entitled to settle (since they did nothing wrong in migrating), and yet it seems also right that the minority has the right to resist the migration by restating their own claim to their lands, which inevitably interferes with the life plans of migrants. Stilz (2019) replies that her account ‘can make space for some derivative group rights to territory’ (54) by identifying the ‘collective interests’ necessary to the group and subsequently conferring the group right of occupation to the needed.[11] As such, if resisting assimilation has to be undertaken through a ‘collective use’ of public space; namely, protecting a culture on the land collectively, such collective interests can prescribe a group right to self-determination for the minority and override the self-determination of migrants, provided that the migration endangers the minority.
How do we determine the scope of the group in question? First, if the right came into being after the assimilation policy, the scope would depend on their de facto control. This means that the minority can only determine the scope in terms of current occupation, which reflects a status quo bias. There is a moral intuition, born out of corrective justice, that their legitimate occupation should include where the new migrants have settled. Second, if the scope was not based on their current occupation but on, say, an historical claim that predates the assimilation, does this imply that the scope is determined by some collective agent, rather than current members, enabling a claim to an area in which they no longer live? In other words, given that we reject the status quo bias and appeal to historically legitimate occupation, the rights-holder should be a group qua group existing over and above individual members, lasting for a period of time, and so entitling members to claim collective interest in occupation, self-government and resisting assimilation.
Moore makes the same criticism (2020a), stating that Stilz’s theory ‘does not have the conceptual resource to identify such groups clearly, nor identify the scope of occupancy rights for such groups’ (762). This problem, moreover, makes the theory insensitive to the historical injustice inherent in the development of states. For instance, many indigenous people reclaim traditional territories that were annexed or colonised. That claim does not entail the eviction of nonindigenous people living on the territories, but rather asks that their territorial entitlement should be recognised. In order to evaluate their claim, it is necessary to envisage a group agent that could delineate how the state has suppressed and constrained their living spaces. Stilz’s theory is, however, unable to determine or explain why the boundaries of traditional territory should be based on historical relationships between people and place, particularly given the remaining tiny populations of indigenous people. Without a group-based account of occupancy rights, Stilz’s theory gives no guidance on how far back restoration should be traced. And without conferring group rights of occupation on substate peoples, Stilz’s theory fails to account for CCS comprehensively because she does not think CCS should be protected by territorial rights formed independently of political institutions.
2.3 Dualism of Territorial Rights and Secession
A synthesis of Moore’s and Stilz’s theories is helpful in identifying a moral basis for secession. To reiterate, a state legitimates its territorial sovereignty over a particular people and territory only if it successfully secures the subjects’ occupancy rights via protectng basic justice and collective self-determination. Given that a proper account of collective self-determination for a functioning society should include both ICS and CCS, Stilz’s theory, though a good candidate for the justification of territorial sovereignty, should blend with Moore’s theory. Thus, citizens engage in political activities not only because they share certain higher-order values constituting political institutions, but also because some of them also identify with certain substate peoples whose collective autonomy shapes their personal autonomy. The state, therefore, is entitled to claim territorial sovereignty only if it also recognises the jurisdictional authority of substate peoples to their self-determination claims to the lands they occupy.
Such a synthesis may appear dubious, as Moore (2015) believes that ‘the state may be the appropriate mechanism through which rights, vested in the people, are exercised, but the people are the fundamental holder(s) of territorial rights’ (96) while Stilz takes states as necessary for realising three fundamental values (i.e. occupancy rights, basic justice and collective self-determination), through which a state is entitled to hold rights to a particular territory on its people’s behalf. In other words, Moorean peoplehood can exist independent of a state and create sufficient group agency to hold territorial rights, while a Stilzean people, though also retaining rights, is basically the ‘incarnation’ of a state. However, I have shown that the value of collective self-determination has two dimensions (CCS and ICS), and their territorialities are best articulated by Moore and Stilz, respectively. Given that Moore does not associate with any view of legitimacy and Stilz fills in the gap, in combination they constitute a coherent account of occupancy rights, legitimacy and collective self-determination (see Table 1). Moreover, the benefits of the combination emerge when we explore how the dualistic account tackles the problems with the original theories. By recognising Moorean territorial rights, which conceive the occupation of substate people as group-based, Stilz acquires sufficient theoretical resource to address the problem of insensitivity to historical injustice. By introducing Stilz’s statist view, the worry in Moore’s theory about undue marginalisation of outsiders can be mitigated, given that a state is set up as the impartial arbiter of tension between outsiders’ and substate peoples’ self-determination.
More importantly, while Moore helps identify a qualified claimant to secession, Stilz’s political autonomy can account for how states become a vehicle of self-determination, which provides a sufficient reason for substate peoples to pursue collective self-determination in host states rather than in other polities. That is, if host states can provide sufficient institutional resource for the collective self-determination and meaningful political participation of substate people, these people would be ruled by laws they have co-authored and thus have reason to remain part of the host state. This reason to stay is merely a sufficient one: it does not entail that peoples must stay in a host state, but that they would rather choose to stay when this reason can override the uncertainty and cost of secession. Nevertheless, if this reason was removed and if the people in question confronted persistent alienation during their political participation, a morally justifiable basis for secession could be identified. I shall call this reason to stay ‘collective self-determination as nonalienation’ and develop it further below.
3 Collective Self-Determination as Nonalienation and Implications for Theories of Secession
Collective self-determination as nonalienation advocates that a Moorean people is entitled to pursue their CCS and practice it in a nonalienating manner. First, a Moorean people should hold jurisdictional authority to CCS over their homelands. This implies a capacity to pursue CCS with sufficient institutional resource. Second, alongside submitting to a host state, they inevitably interact and cooperate with nonmember citizens, who legitimate the state’s grouping of most citizens into a bigger and artificial collective attached to the territory. Third, the artificial collective implies the need for ICS, namely, the people in question strive for their CCS within the framework of ICS. When ICS amounts to political participation without persistent alienation, the form of self-determination in which the people are situated is called ‘collective self-determination as nonalienation’.
The violation of such collective self-determination, namely, the infliction of persistent alienation, deserves further exploration. Although Stilz proposes persistent alienation as a moral basis for secession, I argue that it could amount to either long-term frustration or serious violation of personal autonomy. Moreover, while the latter indicates a narrow sense of persistent alienation and suffices as a moral basis for remedial rights theories, the former occurs when we hold a broad understanding of persistent alienation as the basis for primary rights theories. Finally, taking the broad understanding into account, I argue that people have sufficient reason to take secession as a last resort even though the primary rights thesis is supported. This is necessary to validate whether it is long-term political frustration and whether the international support or social, economic conditions support their claim to secede rather than exacerbate their alienation.
3.1 A Basis for Remedial Rights Theories
To form a moral basis for remedial rights theories, collective self-determination as nonalienation should reflect the logic of ‘freedom from’ by construing secession as a remedy for political illegitimacy. I advocate such a protection if we recognise that a strict sense of persistent alienation amounts to serious violation of personal autonomy. Recall the conditions for reasonable affirmation and imagine again a national minority whose culture is endangered by globalisation. The host state affords them basic justice and they express some sort of willingness to engage ICS by sharing society’s higher values. Via representative democracy, the majority is also aware of their political inferiority and agendas. However, their suggestions for identity-related policies, such as religious schools, are rejected because their population is small. Given that the religion does not violate basic justice and is vital to their collective autonomy (as Buddhism is for Tibetans, for example), the state has no objective moral reason, but rather a political one only, for subjugating the minority to the preferences of the majority. The minority thus confronts a serious violation of personal autonomy. The democratic process seems to encourage the minority to fulfil their CCS, but the majority repeatedly neglect their needs, frustrating the minority’s attempts to achieve collective autonomy. The minority seems to be co-author of social laws because they are participating politically, yet they are just a rubber stamp in legislative terms, compelled to obey rules that do not respect their needs. This frustration is exacerbated by the structure of modern states and restrictive migration policies. The minority cannot leave this subjection at will, and their personal autonomy is impeded gradually and significantly as long as their collective autonomy continues to erode.
As illustrated, the recognition of collective self-determination as nonalienation protects people’s freedom from (personal) autonomy violation by securing their CCS. Thus, remedialists must grant that serious violation of collective autonomy justifies a claim to secede, as that violation would ultimately become a serious violation of personal autonomy. Yet, does the harm identified suffice to delegitimise the state? Patten (2014) confirms that states should still strive for neutrality, because this implies a useful and desirable moral constraint on the exercise of state power (165–171). States should be neutral towards different accounts of CCS within their realms and committed to form institutions and policies that accommodate rival accounts of CCS, such as multinational federations. Patten concludes: ‘When the state has disfavoured some particular conception of the good on the basis of considerations that fail to adequately and appropriately grapple with the reason it has to be neutral, it does an injustice to the bearers of that conception’ (107). This reflects remedial rights theories, following the logic of freedom from and regards the violation of collective self-determination as an injustice undermining a state’s political legitimacy.
Would Buchanan accept my dualist account of territorial rights as the moral basis for secession?[12] The answer is yes and no. My proposal contradicts Buchanan’s theory if he insists the justification of legitimacy is based primarily on the protection of basic human rights, and self-determination should first and foremost be a value for the citizens as a whole, rather than a collection of subsets of citizens. However, Buchanan would welcome my proposal if he remained remedialist but admitted that his theory implies internal inconsistency. One objection to nonremedial secession raised by Buchanan is that of territorial integrity, in which the state derives its legitimacy from protecting the basic human rights of its people who legitimately occupy the territory. Further, by safeguarding the occupancy interests of the people and achieving legitimacy, the state represents the people as a whole and is entitled to territorial integrity. Finally, ‘no portion of the citizenry, simply because it decides to create its own state, has a unilateral right to take away part of that territory to create a new jurisdiction’ (Buchanan 2004/2007, 375).
This conclusion, Catala argues, omits to mention that the state would illegitimately represent a subset of the people if it failed to deliver their fundamental group interests, which are necessary to justify its territorial entitlements. Catala (2013, 81–82) shows that territorial justification comprises two procedures. First, individuals occupy lands and develop into communities in accordance with their shared social and political practices. Subsequently, the state is justified in representing them as a whole and holding the right to territorial integrity when it protects shared social and political practices. As such, if some people are not fully protected, the state would fail to represent them, whereby the claim to territorial integrity or jurisdictional authority would not include their territory. My collective self-determination as nonalienation both concurs with and deepens Catala’s insight, for the two procedures are illustrated by the development of CCS and ICS: the fundamental group interests are further specified by located life plans, communal development and modes of political participation; and successful representation can now be scrutinised in terms of whether the state achieves collective self-determination as nonalienation.
My proposal also ameliorates Buchanan’s account of secession (2004/2007) without affecting his remedialist position. He offers several arguments for his remedial rights only theory, of which institutional moral reasoning is the backbone: ‘whether a particular account of the right to secede is defensible will depend upon whether embodying its principles in the international legal order would, all things considered, promote the proper goals of the system’ (348). This reasoning demands holistic theorising about the right to secession, advocating that the ‘consequence’ of this theorising should be compatible with the institutional schema (i.e. international law). Moreover, the theorisation of the norm (regulating secession) should ‘precede’ the theorisation of the right, in that the latter should submit to the former, not the other way around. Insofar as my proposal would not change Buchanan’s theory of international law substantively, and the overall consequence of institutionalising the remedial right is better than that of the primary right for international law, accepting my dualist account of territorial rights would not change Buchanan’s position on justified secession, namely, as a remedy of last resort for serious violation of basic human rights, unjust annexation and persistent breach of intrastate autonomy.
However, Buchanan must recognise the value of self-determination and the territorial justification (regarding secession) proposed here to be consistent with the last two conditions for secession. As pointed out by Catala (2013, 76), the most compelling moral reason to oppose unjust annexation underlying Buchanan’s theory is violation of self-determination. Buchanan (2004/2007) also admits that violation of basic human rights does not necessarily accompany annexation, and the rationale against annexation behind international law manifests the right to self-government (355). Given that Buchanan’s account of territorial integrity is incorrect, he must recognise the necessity of self-determination for political legitimacy or territorial rights in order to make the inclusion of annexation more coherent. Further, my proposal identifies two forms of self-determination that may be at stake. Annexation would either violate ICS, which refers to the value of shared institutions constituted by the citizens as a whole, or CCS, which is a form of communitarian goods developed independently from the state. The same logic applies also to violation of intrastate autonomy. This condition, Buchanan argues, aims to protect basic human rights, but the state has not yet violated the basic human rights of the minority, nor has the group justified its territorial claim. While Buchanan’s territorial theory fails to account for this scenario, my proposal fills the theoretical gap. That is, the group can justify their territorial claim by appealing to the scope of CCS and legitimise unilateral secession by demonstrating that ICS does not respect CCS, because persistent breaches of intrastate autonomy subject them to persistent alien coercion and violation of their personal autonomy.
3.2 A Basis for Primary Rights Theories
However, some may argue that this violation of personal autonomy is not sufficient to delegitimise a state, contending either that the nonrecognition policy is applicable or disconnecting political legitimacy from neutrality. Indeed, if we based political legitimacy only on the protection of basic justice, persistent alienation fails to nullify political legitimacy. However, this does not mean a claim to secession is morally wrong when a state maintains its legitimacy. As advocated both by Moore and Stilz, secession can be morally justified if the state fails to secure collective self-determination. My dualist view not only concurs with that conclusion but can also be a moral basis for primary rights theories. To achieve this, it must endorse the freedom to greater collective autonomy proposed at claimants’ discretion; and the freedom is granted even if the state is legitimate and employs a multinational federation. Below I argue that my proposal meets these two conditions if persistent alienation is interpreted in a broad sense that does not associate persistent alienating coercion with grave injustice, but with some negative psychological impact upon claimants.
Long-term political frustration arises from a sincere engagement in political participation that does not result in self-determination. This is subjective (because the CCS with which they identify is relative to their political histories, customs or cultures) and psychological (because the people lack a sense of meaningful political participation). This can be further illuminated by appeal to Jeppe von Platz’s argument (2021), according to which the alienated cannot orient their desires, recognition or emotions adequately towards their corresponding goals. Instead, ‘their needs for love, respect, and recognition are perverted into immoral needs for superiority, privilege, possession, and domination’ (407). Envy, distrust of the majority and unclear moral values spread through group, making society unstable and restless. The minority might also seek radical means by which to fulfil their CCS and suspect that social cooperation is no more than favouritism, wrongfully believing that acts like free-riding, exploitation and domination are now justifiable.
Thus, collective self-determination as nonalienation is committed to greater collective autonomy, allowing people to freely choose their CCS and to evaluate whether institutions and policies meet their demands. Moreover, even though the minority may experience long-term frustration, this falls short of a grave injustice sufficient to render the state illegitimate. Nevertheless, I have also shown that social instability would arise, and the alienated group would lose the moral power to cooperate with others in constructing a just society. These problems remove any reason for the group to remain in the host state, even though it retains political legitimacy. In other words, the rupture between the people and the shared political will removes their sense of self-rule, and so the host state loses its sovereignty over both the alienated and their homeland. Finally, because jurisdictional authority over the group and their land cannot be justified, they are entitled to claim secession, provided some important caveats are in place (Vaca and Artiga 2021, 18–19). This, I believe, implies the rationale behind primary rights theories.
One may wonder whether the same consequences would occur within a multinational federation or decentralised state. When Patten defends multinational federations against the primary rights to secede, he does not touch upon how substate people may feel if their desire for collective self-determination cannot be met within a federal framework. Although it is foreseeable that the harm mentioned above is less serious or less likely in a decentralised government, this does not mean it would never happen, because sometimes federalism lacks the institutional resources that substate people require. Post-Brexit Scotland may be a case in point: the majority of British voters voted to leave the EU, while most Scottish voters preferred to stay. If the Brexit deal ignores Scottish interests because they conflict with those of the majority, it may be that the Scottish economy will decline, rendering Britain as a whole weak and uncertain. Scottish people may thus feel an acute sense of alienation and revisit discussions around independence. This thought experiment illustrates that sometimes long-term frustration and disappointment can be found within a (multinational) devolved state.
By following collective self-determination as a form of nonalienation, we can derive a moral constraint on the exercise of primary rights to secede, namely, some (sufficient) reason to undertake secession as a last resort. Because secession is undertaken to overcome long-term political frustration and disappointment, people need sufficient time and discretion to evaluate their social conditions and how they feel about them; that is, whether the CCS to which they are attached is still necessary and important, whether the alienation they suffer is persistent, and whether secession is necessary to advance their collective self-determination. This implies that people must set aside their suffering temporarily and weigh the benefits and costs of staying or leaving. Recall that the dualist view provides a reason to stay in the host state, namely, self-rule for individuals and sufficient institutional resource for collective self-determination. This means that reasoning should not be confined to political frustration and disappointment, but also take account of all external factors influencing the possibility of self-government after secession. This, for instance, includes international support for secession, social and economic conditions after independence, and future relationships with host states. Returning to the example of Scotland, if its economic prospects largely depend on being a member of the EU, then its claim to secede should be supported by most or all EU members. The relationship with the rest of Great Britain is critical given the intertwining of so many social and economic activities. Such calculations are time-consuming and thus encourage us to treat secession as a last resort. I regard this last-resort condition as a virtue of my proposal, given that my thesis can be a moral basis for primary rights to secede. Therefore, people have sufficient reasons to consider secession as a last resort to enhance their collective autonomy even though the right to secede can be a primary right.
4 Conclusions
In conclusion, I revisit the moral basis of secession by situating the issue within the concept of territorial rights. Based on two distinct conceptions of collective self-determination, I argue for a dualist account of territorial rights that combines Moore’s theory with Stilz’s. Secession is morally valuable if it protects the territorial rights of a Moorean people, a protection that secures their capacity to reasonably affirm political participation. Thus, people are entitled to sufficient institutional resource for their collective self-determination and can exercise it without facing persistent alienation. This thesis can be common moral ground for remedial and primary rights theories, provided they concede the value of collective self-determination appropriately. When strictly understood, secession is morally justified, provided that the claimant’s personal autonomy has been violated, echoing Patten’s account of secession. Yet, if persistent alienation is broadly understood, the claimant suffers long-term frustration that cannot be avoided even in multinational federations. Consequently, in order to verify whether it is long-term political frustration and to address persistent alienation more effectively, my proposal argues that people should regard secession as a last resort, even though it falls into the category of primary rights.
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