SECTION III: Argument from Territorial Integrity
Buchanan criticizes the ‘Primary Right Theorists’ on the grounds of the territorial integrity of a just and liberal sovereign state.1 He argues that according to the morally progressive interpretation of international, only the territorial integrity of illegitimate states can be violated. He provides two conditions which would render a state illegitimate: (i) threatens the lives of a majority of people on the basis of ethnic and religious persecution, and (ii) exhibits institutional racism against a substantial portion of the population depriving them of their rights.2 He concludes to establish that the ‘Remedial Right Theorists’ will counter the legitimacy of the state on these grounds. To this end, Beran would argue that the lack of consent of Y in remaining in territory B makes the state illegitimate. For him, Consent refers to the acceptance of the membership of a state. He argues that only the agreement to obey the state gives rise to political obligation given it is free from the overriding conditions, for example, if the agreement is obtained due to coercion or deception. The scope of the paper does not allow me to further this argument but has been succinctly argued by Beran elsewhere.3 However, he concludes that the absence of overriding concerns in one agreement to obey the state would generate political obligation. Therefore, I conclude to argue that this lack of consent would lead to the illegitimacy of the state and would allow overriding the territorial claims of a sovereign.
I counter-argue that the focus on territorial concentration being a prerequisite for secession has two problems in Buchanan’s theory which are provided for in Beran’s theory. The focus on territorial concentration does not allow for minorities who are dispersed throughout the territory to secede because (i) they are dispersed throughout the territory so do not have concentrated territorial claims; (ii) lack of territorial claims.4 Condition (i) would prevent the potential seceding community, C, to ask for a separate state due to a lack of concentration in a specific territory even if injustice is meted out to them (Annex 4). This leads to the right of remedial secession becoming a privilege for those who own territory and are concentrated in a region. This would be against Buchanan’s placing of secession in liberalism. This is because Liberalism in his understanding sought to rectify social justice by providing everyone with similar rights.5 However, his focus on territorial integrity effectively works against his ideal of social justice and prevents the dispersion of similar rights to secession to everyone.
I further argue that this conundrum can be solved using Beran’s theory. His theory, although based on territorial concentration still prevents a right to the secession of the potential seceding territory, if it can lead to exploitation of the minorities dispersed in the territory.6 If C wants to secede from B where Y forms the potential seceding group, the possibility of Y exploiting Xs who are dispersed throughout C, the new territory, would reject a right of secession for X (Annex 5). This has two implications: (i) it denies a right to secede for a potential illiberal state which could engage in the exploitation of minorities incapable to secede; (ii) it allows for an extension of the liberal theory to declare the illegitimacy of liberal state which do not provide similar rights to all minorities concentrated or otherwise. Unlike Buchanan’s framework, this provides a similar dispersion of rights throughout the seceding and the non-seceding territory which affirms the universality of rights under Liberalism.
Till now I have established that Beran’s right to secession is compatible with the Liberal Democratic framework. To reiterate, in a liberal framework individuals have certain natural and inalienable rights which are operating in a system of interrelated rights. Freeman argues that Beran provides for a moral right to secession in his theory, however, by providing for limitations to this right, he dilutes the morality of the same.7 This is because if the right to secession is a moral right then it should exist in silos and not be subject to any limitations. I find this understanding inaccurate. This is because Beran is locating the right to secession within a liberal framework of interrelated rights while upholding individual autonomy. Beran has not argued that the right to freedom of political association is the only right pertinent in his secession theory. As argued above, by providing for conditions protecting the rights of impacted parties, Beran provides for a theory where moral rights can be overridden due to exigent considerations.
SECTION IV: Argument from Recursive Secession
Liberal Democratic Theory can be divided into three main components: (i) foundational or non-derivative rights which are possessed by all individuals; (ii) these rights are universal; (iii) no moral right possessed by an individual can be overridden for social benefit.8 Based on this understanding of Liberalism, I try to criticize Beran’s theory of secession on two grounds of recursive secession and practicality.
Beran allows for recursive secession in his theory providing for the rights of individuals even within the seceding territory to ask for a referendum.9 I will argue this using the same example of territory B. C wants to secede from B where Y forms the potential seceding territory and X remains the other community of people. B secedes from C where Y forms the majority and X, although a minority, becomes a territorially concentrated majority in D. However, when Y tries to secede with territory D, it is found to be incapable of being an independent state as per condition (i) (Annex 6). This is pertinent because the right of recursive secession is integral to Beran’s argument. He emphasizes this right because of the universality of rights in Liberalism. It is a logical corollary to this that Beran’s argument would fall foul of his liberal principles if the universality condition is not met. However, he has not provided for any clashes that might arise within his own theory. In the example above, the right to recursive secession is in conflict with Condition (i).
I counter-argue my argument by emphasizing that rights in the liberal framework do not operate in Silos and are subject to others’ rights. In this example, if D ends up seceding, it will not be able to maintain its subjects Y or protect their rights. This would make the state illiberal. Therefore, the right of D to secede now becomes subject to (i) the right of Y after the secession has happened and (ii) the prevention of the formation of an illiberal state. Therefore, D’s right to secession can be overridden by these considerations (Annex 7).
SECTION V: Argument from Practicality10
Buchanan has argued that in the implementation of Beran’s theory, there would be the following problems:
- The States who wish to preserve their territory would prevent the potential secessionist majorities from concentrating in areas which could be capable of forming an independent state.
- This would lead to specific restrictions on ethical, cultural or religious groups to move into specific areas where they could form a local majority whether from other states or parts of states.
- Similarly, this would also lead to the dispersion of these local majorities throughout the territory of the state to prevent the formation of a majority.
- This would also serve as an incentive for potential seceding groups to accumulate in one area and disperse other groups from the same to prevent recursive secessions.11
I have tried to argue against these limitations through the Beran framework but was unable to find any justification for the same, unlike the other arguments I have hypothesized. These form fair limitations of Beran’s work which have to be further developed in another theory of secession.
In this paper, I have explained Beran’s theory of Secession rooted in personal self-determination. I have tried to understand the different interpretations of Liberalism stemming from a Lockean model of Liberalism using the models of Primary Right Theorists and Remedial Right Theorists. I have counter-argued against Freeman’s criticism of Beran where he questioned Beran’s understanding of liberal thought. I do this by using Beran’s theory to establish his placing of secession remains embedded in the liberal theory of interrelated rights. Through the territorial integrity argument posed by Buchanan, I have argued that Beran’s framework renders states illegitimate through the consent theory. This becomes pertinent to counter the progressive interpretation of territorial integrity under International Law which allows for the secession of illegitimate states. I also offer a criticism that Beran’s theory allows for two contradictory principles which I argue against through the theory of interrelated rights. Finally, I have provided for limitations in Beran’s framework which could be countered using his theories.
The Way Forward
My understanding of this theory raises more questions than it answers which needs to be further developed. Whether national self-determination plays a bigger role in Beran’s theory than individual self-determination? How do you prevent Balkanisation in a theory which provides for a liberal right to secession? How do you prevent the vetoing of certain territories out of larger territories because of their compositions? These questions only form the tip of the iceberg.
1 Allen (n 9) 238.
2 ibid 239.
3 Harry Beran, The Consent Theory of Political Obligation (Routledge 1987) 34.
4 Linda Bishai, ‘Secession and The Problems of Liberal Theory’ in Percy B. Lehning (ed), Theories of Secession (Routledge 2015) 96.
5 Allen (n 9) 230.
6 Beran (n 1) 30-31.
7 Freeman (n 11) 18.
8 Hillel (n 14) 64.
9 Beran (n 1) 30.
10 The arguments I came across and could not counter.
11 Allen (n 9) 244.