Federalism and Secession.

• Superior document: Diversitas Series ; v.26
• Author: Cagiao y Conde, Jorge.
• TeilnehmendeR: Gagnon, Alain-G.
• Place / Publishing House: Brussels : : P.I.E. - Peter Lang SA Éditions Scientifiques Internationales,, 2021.; {copy}2021.
• Year of Publication: 2021
• Edition: 1st ed.
• Language: English
• Series: Diversitas Series
• Physical Description: 1 online resource (198 pages)

The controversial issue of secession has received little attention from experts of federalism. The best federal studies either evade it or dismiss it in a few lines. However, this issue has been present throughout the history of federations. This book is one of the first to explore the complex relationship between federalism and secession.

Table of Contents

Cover -- Copyright information -- Acknowledgements -- Contents -- Introduction -- 1 Federalism(s) and secession: from constitutional theory to practice -- Introduction -- 1. Confederation: a "free union" that hides its true nature? -- 1.1 From a union of sovereign states … -- 1.1.1 Confederation as viewed in Kantian political philosophy -- 1.1.2 The concept of confederation in public law -- 1.2 … to a "perpetual confederation" -- 1.2.1 Confederal laws against secession -- 1.2.2 The philosophical turning-point in the 16th century: the Dutch influence -- 1.2.3 Universalization of the right of secession: the US Declaration of Independence -- 2. The federal state: an "indissoluble union"? -- 2.1 Federal positive law -- 2.1.1 Federal constitutions expressly allowing a right of secession -- a) Constitutions that recognized a right of secession in the past -- b) Constitutions currently recognizing a right of secession -- 2.1.2 Federal constitutions excluding all forms of secession -- 2.1.3 Constitutions that remain silent on the question of secession -- a) Interpretation by Supreme Court justices: a centripetal constitutional force -- b) Federal realpolitik -- 2.2 Using constitutional theory to cut the Gordian knot of secession -- 2.2.1 The trap set by the syncretism of the federal state -- 2.2.2 Redefining the constitutional basis for secession -- a) Partial versus total revision -- b) Actual cases -- 2 Secession from a federation: a plea for an autonomous concept of federative secession 1 -- Introduction -- 1. Defining and identifying the concept of federative secession -- 1.1 The dominant conception of secession -- 1.1.1 Secession seen as the aspiration of an infra-state (or infra-nation) group to constitute its own state or nation -- 1.1.2 The legal dogma on secession -- a) Secession is not dissolution -- b) Secession is not devolution.

1.2 Federative secession and conceptual autonomy -- 1.2.1 Why the state-centric view of secession fails to account for the specific nature of federative secession -- 1.2.2 Dogma on federative secession -- a) Federative secession and intra-federative secession -- b) Secession of a member state and exclusion of a member state -- c) Unilateral or non-unilateral secession? -- d) The effects of secession: secession and dissolution -- 2. Deciding the licitness of federative secession: neither authorized nor prohibited (like secession from a unitary state) -- 2.1 Federative secession cannot be prohibited a priori -- 2.2 The impossible licitness of unilateral federative secession -- 3. The impossibility of imposing a legal sanction on federative secession -- 3.1 The distinction between federal intervention and federal execution -- 3.2 The Civil War, or the division of the union institutionalized by war -- 3 Are federalism and secession really incompatible? -- Introduction -- 1. General approach -- 2. Secession as seen by the theoreticians of federalism -- 3. Secession in positive law -- 4. Secession and "legal logic" -- Conclusion -- 4 From referendum to secession - Qu é bec's self-determination process and its lessons * -- Introduction -- 1 The constitutional capacity of Qu é bec's institutions to hold a referendum - A stake little debated or opposed -- 1.1 The historical dimensions leading to referendums on the sovereignty of Qu é bec -- 1.1.1 Referendum practices in Qu é bec and Canada prior to the debates on secession -- 1.1.2 The 1980 and 1995 referendums on Qu é bec sovereignty -- 1.2 The legal aspects allowing self-determination referendums in Canada -- 1.2.1 The absence of constitutional restrictions on holding referendums -- 1.2.2 Constitutional practices with respect to referendums.

2 Qu é bec's constitutional ability to declare its independence - An issue far less consensual -- 2.1 The activism of federal institutions -- 2.1.1 The Reference re Secession of Qu é bec and the conciliation of strongly diverging interests by the Supreme Court of Canada -- 2.1.2 The Clarity Act and the federal parliament's declaration that it was both party and judge in the constitutional dispute -- 2.2 The contemporary evolution of the debate and some unanswered questions -- 2.2.1 The threshold of the popular majority required for Qu é bec to declare independence -- 2.2.2 The ambiguity surrounding the duty to negotiate and the process of constitutional amendment -- Conclusion -- 5 Compromise or dislocation: federal alternatives to secessionist and centralizing temptations -- Introduction -- 1. Federalism in Spain -- 1.1 The federal projects of political parties in the central state -- 1.2 The federal projects of political parties at the regional level -- 2. Federalism and the right to self-determination -- Conclusion -- Notes about the Contributors -- Series index.