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Between Democracy and Law

This volume purports to explore the legal and political issues triggered by the
new wave of secessionism. More specifically, those issues concern the interplay
between notions of democracy (and democratic ends and means) and law (and
the rule of law and constitutionalism). Against this background, the editors use
amorality in order to escape the terrain of the justification of secession by making
a distinction between the democratic theory of secession and the theory of demo-
cratic secession. In the first section, the theoretical nexus democracy-secession
has been approached both from a legal and political theory perspective. The sec-
ond section of the book examines the instruments that the theory of democratic
secession invokes in order to justify secession and presents both legal and political
science contributions. The third section focuses on social movements and politi-
cal actors. The fourth section focuses on two case studies due to the awareness
of the importance of the difference between secession in a democratic occiden-
tal context (which call into play the discussion of the democratic theories) and
separations in a non-democratic context (where the nexus between secession and
democracy is not really central).

Carlos Closa, Spanish National Research Council (CSIC), Madrid and European
University Institute (EUI), Florence. Professor Closa has been Jean Monnet
Fellow at the European University Institute (EUI), Florence, Visiting Fellow
at the Centre for European Studies, Harvard University, Visiting Professor at
the College of Europe, Bruges, Emile Nöel Fellow at the Jean Monnet Centre,
NYU and Visiting Professor at the University of Groningen, The Netherlands.
He is Member of the Scientific Board of the Real Instituto Elcano de Estudios
Internacionales y Estratégicos (RIE). He has published widely in various lan-
guages on EU citizenship, the EU constitutional structure and the relationship
with the Member States.

Costanza Margiotta is Associate Professor of Philosophy and Theory of Law,

University of Padua, Italy. She holds a PhD in Legal Theory from the European
University Institute, Florence. Her research focuses on secession in international
law, European citizenship and on slavery, race and law. She has published widely
on these and related areas.
Giuseppe Martinico is Associate Professor of Comparative Public Law at the
Scuola Superiore Sant’Anna, Pisa and Centre for Studies on Federalism, Turin,
Italy. Prior to joining the Sant’Anna School of Advanced Studies he was García
Pelayo Fellow at the Centro de Estudios Políticos y Constitucionales (CEPC),
Madrid, and Max Weber Fellow at the European University Institute, Florence.
He is also affiliated to several international research centres where he has been
carrying out international projects related to comparative federalism and sub-
national constitutionalism, and to the constitutional dimensions of EU law and
international human rights law, especially the European Convention on Human
Rights. He has published widely on these and related areas.
Between Democracy and Law
The Amorality of Secession

Edited by Carlos Closa,

Costanza Margiotta and
Giuseppe Martinico
First published 2020
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
52 Vanderbilt Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2020 selection and editorial matter, Carlos Closa, Costanza
Margiotta and Giuseppe Martinico; individual chapters, the
contributors
The right of Carlos Closa, Costanza Margiotta and Giuseppe
Martinico to be identified as the authors of the editorial material,
and of the authors for their individual chapters, has been asserted in
accordance with sections 77 and 78 of the Copyright, Designs and
Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
reproduced or utilized in any form or by any electronic, mechanical
or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or retrieval
system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Closa, Carlos, editor. | Margiotta, Costantino, 1972- editor. |
Martinico, Giuseppe, editor. | Routledge (Firm)
Title: Between democracy and law: the amorality of secession/edited by
Carlos Closa, Costanza Margiotta, and Giuseppe Martinico.
Other titles: Amorality of secession
Description: New York: Routledge, 2019. | Includes index.
Identifiers: LCCN 2019032584 (print) | ISBN 9780367145804
(Hardback) | ISBN 9780429032400 (eBook)
Subjects: LCSH: Secession. | Separatist movements–Case studies. |
Constitutional law.
Classification: LCC JC327 .B565 2019 (print) | LCC JC327 (ebook) |
DDC 320.1/5–dc23
LC record available at https://lccn.loc.gov/2019032584
LC ebook record available at https://lccn.loc.gov/2019032585
ISBN: 978-0-367-14580-4 (hbk)
ISBN: 978-0-429-03240-0 (ebk)
Typeset in Galliard
by Deanta Global Publishing Services, Chennai, India.
Contents

Notes on contributors vii

1 Introduction 1

PART I
The theoretical nexus democracy – secession 7

2 An update on secession as the “ultimate right”:

For a liminal legality 9
COSTANZA MARGIOTTA

3 Secession v forceful union: A provisional enquiry into the

right to decide to secede and the obligation to belong 29
JOXERRAMON BENGOETXEA

4 A critique of the theory of democratic secession 49

CARLOS CLOSA

5 Decide on what? Addressing secessionist claims in an

interdependent Europe 62
DANIEL INNERARITY AND ANDER ERRASTI

PART II
The instruments of the theory of democratic secession 85

6 Constitutionalists’ guide to the populist challenge:

Lessons from Canada 87
GIUSEPPE MARTINICO
vi Contents
7 Sovereignty referendums: A question of majority?:
Or how “majority” actually begs numerous questions 105
STÉPHANE BEAULAC

8 Independence referendums: History, legal status and

voting behaviour 133
MATT QVORTRUP

PART III
Non-institutional actors 153

9 The framing of secessionism in the neo-liberal crisis:

The Scottish and Catalan cases 155
DONATELLA DELLA PORTA, FRANCIS O’CONNOR AND MARTÍN PORTOS

10 The Europeanization of the Catalan debate:

A “war of attrition”? 173
MATTIA GUIDI AND MATTIA CASULA

PART IV
Case studies 193

11 On Brexit and secession(s) 195

NIKOS SKOUTARIS

12 An attempt to disentangle the Crimean impasse 213

LUIGI CREMA

Index 229
Contributors

Stéphane Beaulac is a full professor at the Université de Montréal; he began his

academic career at Dalhousie Law School in 1998. He holds a PhD in inter-
national public law from the University of Cambridge, where he also earned
an LL.M. (first class honour). His background is bijural: civil law at Ottawa
(summa cum laude) and common law at Dalhousie (first in the national pro-
gramme); he clerked at the Supreme Court of Canada. He was a Max Weber
Fellow at the European University Institute in Florence, a Neil MacCormick
Fellow at the University of Edinburgh School of Law, and a visiting profes-
sor in Amsterdam, Ulster and Trento. He co-edited with E. Mendes the fifth
edition of the collective book Canadian Charter of Rights and Freedoms; he
is also responsible, with J.-F. Gaudreault-DesBiens, for the public law series
for JurisClasseur Québec. His writings have won awards and, indeed, were
cited by the International Court of Justice in The Hague. A lawyer with the
Ontario Bar, Stéphane Beaulac has been invited to testify before parliamentary
committees in Ottawa; he is also a public intellectual, regularly contributing
to current debates in the media multilingualism and European integration and
the theory of state and nation.
Joxerramon Bengoetxea (PhD, Edinburgh) is Professor of Jurisprudence and
Sociology of Law at the University of the Basque Country (UPV/EHU).
Courses taught include “Philosophy and Sociology of Law”, European Law
(free movements and cohesion policy) and “Comparing Legal Cultures” at
the International Master in Sociology of Law at the Oñati Institute, which he
coordinates together with the Doctorate in Sociology of Law. He is a member
of the Academic Board of the “Renato Treves” International PhD in Law and
Society. While at Stanford, Professor Bengoetxea will be teaching the course
“Cultural, Legal and Constitutional Pluralism in Europe” at the School of
Law. This course raises interesting political, legal, socio-legal, comparative and
jurisprudential questions from phenomena like Muslim law, national minori-
ties, the Roma and other sources of diversity in Europe, and their challenges to
supranational outlooks adopted at the two major European Courts. In addi-
tion, he has edited several books and published over 140 articles or book
chapters in law reviews, journals, collective editions and readers dealing with
viii Notes on contributors
issues of legal reasoning and legal theory, EU law and institutions, regionalism
in the EC, comparative law, political philosophy (theory of nationalism and of
European integration).
Mattia Casula is currently a Post-Doctoral Research Fellow in Political Science
at Ca’ Foscari University of Venice. He had visiting positions at the European
University Institute, University of Strathclyde and at the University of
Edinburgh. His research and publications focus on comparative public policy
and administration, with an emphasis on the sub-national/local level. Within
these topics, he wrote several articles that have been published in international
peer-reviewed journals.
Carlos Closa (Spanish National Research Council (CSIC), Madrid and European
University Institute (EUI), Florence) directed the research area European,
Transnational and Global Governance within the EUI Global Governance
Programme until December 2015. He has been Deputy Director at the
Centre for Political and Constitutional Studies (CEPC), Madrid and member
of the Venice Commission for Democracy through Law of the Council of
Europe. He has served formerly as Senior Lecturer in Political Science at the
University of Zaragoza (Spain) and Lecturer at the Universidad Complutense
de Madrid. He holds a PhD in Politics, and an MA in European Integration
and Cooperation by the University of Hull (UK). He has been Jean Monnet
Fellow at the European University Institute (EUI), Florence, Visiting Fellow
at the Centre for European Studies (Harvard University), Visiting Professor
at the College of Europe (Bruges) and Emile Nöel Fellow at the Jean
Monnet Centre, NYU and Visiting Professor at the University of Groningen
(The Netherlands), the University of Maastricht (the Netherlands) and the
University of Passau (Germany). He is Member of the Scientific Board of the
Real Instituto Elcano de Estudios Internacionales y Estratégicos (RIE). He
has published a large number of articles (in Spanish, English and Italian) on
EU citizenship, the EU constitutional structure and the relationship with the
Member States in journals such as Common Market Law Review, Journal of
European Integration, Law and Philosophy, Comparative European Politics or
the Revista de Estudios Políticos (in Spanish). As consultant, he has collaborated
with the European Commission (DG Justice, Freedom and Security), the UN
Programme for Development (UNDP) in Iraq (UNAMI) and the Friedrich
Neumann Foundation on advising on constitution-making in Iraq and ter-
ritorial de-centralization in Thailand; he has also participated in a Council
of Europe programme for capacity building involving national parliamentar-
ians in Serbia and Montenegro and with the Spanish Cooperation Agency
(AECID) in formation and training on regional integration in Latin America,
decentralization processes in the Andean area and formation of parliamen-
tarians. He also collaborated with the EU Commission and the Council of
Europe in a project on the implementation of the Constitution of Bolivia. He
collaborates usually with the Real Instituto Elcano de Estudios Internacionales
 Notes on contributors ix
y Estratégicos and the Fundación Alternativas, where he has published sev-
eral policy papers, with the Foundation Notre Europe, the EU Committee of
Regions and with the Bureau of Policy Advisers (BEPA) of the President of
the European Commission.

Luigi Crema is Assistant of International Law at the Law School of the University
degli Studi of Milan. He graduated summa cum laude in law at the University
degli Studi of Milan (2005), and holds a PhD in Public International Law
from the universities of Geneva and Milan (joint degree). He has been invited
as visiting scholar by the faculties of law at the universities of Neuchatel and
Geneva (Switzerland) and Notre Dame (USA). His research has been pri-
marily dedicated to international investment law, transitional justice in Latin
America and treaty interpretation.
Donatella della Porta is Professor of Political Science, Dean of the Institute for
Humanities and the Social Sciences and Director of the PD program in Political
Science and Sociology at the Scuola Normale Superiore in Florence, where she
also leads the Center on Social Movement Studies (Cosmos). Among the main
topics of her research: social movements, political violence, terrorism, corrup-
tion, the police and protest policing. She has directed a major ERC project
Mobilizing for Democracy, on civil society participation in democratization
processes in Europe, the Middle East, Asia and Latin America. In 2011, she
was the recipient of the Mattei Dogan Prize for distinguished achievements
in the field of political sociology. She is Honorary Doctor of the universities
of Lausanne, Bucharest and Goteborg. She is the author of 85 books, 130
journal articles and 127 contributions in edited volumes.
Ander Errasti obtained a BA in Philosophy at University of Barcelona (UB)
in 2010. In 2011, he pursued Philosophy studies with an MA in Political
Philosophy at the Pompeu Fabra University (UPF), with a final thesis on
the concept of self-determination in W. Kymlicka and M. Seymour: an ana-
lytical approach supervised by Dr Requejo. In 2013, he gained a Business
Administration Diploma at UB. He started a PhD in Humanities – Ethics and
Political Philosophy – at UPF in 2011. He is supervised by Dr Sonia Arribas
and Dr Daniel Innerarity. His research is focused on a normative analysis of
Ulrich Becks’ Cosmopolitanism. In 2014, he obtained the Advanced LLM
in Legal Sciences at the UPF with a thesis on the articulation of diversity
and universality at the European Court of Human Rights, supervised by Dr
González-Pascual.
Mattia Guidi is Assistant Professor of Political Science at the Department of
Social, Political and Cognitive Studies of the University of Siena. His research
focuses on delegation and institutions, independent regulatory agencies, EU
competition policy and EU macroeconomic governance. He has published
articles on several international journals, including JCMS: Journal of Common
Market Studies, Regulation & Governance, European Union Politics, European
x Notes on contributors
Political Science Review, Acta Politica, Comparative European Politics and
several book chapters. His monograph Competition Policy Enforcement in
EU Member States (2016) is published under the European Administrative
Governance series.

Daniel Innerarity is part-time Professor at the School of Transnational

Governance (STG). He is Professor of Political and Social Philosophy at the
University of the Basque Country and the Ikerbasque Foundation for Science,
Spain. He is also director of the Instituto de Gobernanza Democrática.
Previously, he was a Robert Schuman Visiting Professor at the European
University Institute (EUI), Fellow of the Alexander von Humboldt Foundation
at the University of Munich and visiting professor at the University of Paris
1-Sorbonne. He has been awarded the Miguel de Unamuno Essay Prize, the
2003 National Literature Prize in the Essay category, the Espasa Essay Prize
and the Euskadi Essay Prize. He has also received the Prize for Humanities,
Culture, Arts and Social Sciences from the Basque Studies Society/Eusko
Ikaskuntza in 2008 and the Príncipe de Viana Culture Prize 2013.
Costanza Margiotta is Associate Professor in Philosophy and Theory of Law,
University of Padova. Attached to the Department of Political Science, Legal
Science and International Studies. She holds a PhD in Legal Theory from
the European University Institute (Florence). Her research has been focus-
ing on Secession in international law, European Citizenship and on Slavery,
race and law. Among her books are: L’ultimo diritto. Profili storici e teorici
della secessione (The Ultimate Right. Theoretical and Historical Profiles of
Secession, 2005) (Awarded the Essays International Prize “Salvatore Valitutti”,
XIII Edition, in 2006); Cittadinanza europea. Istruzioni per l’uso (European
Citizenship. Instructions for use, 2014) and La recezione di Kelsen nel dibat-
tito italiano sulla democrazia costituzionale (1950–1980), (Kelsen’s Legacy in
the Italian Debate on Constitutional Democracy (1950–1980), Firenze, Le
Lettere, 2005.
Giuseppe Martinico (Scuola Superiore Sant’Anna, Pisa and Centre for Studies
on Federalism, Turin) is an Associate Professor of Comparative Public law
at the Sant’Anna School of Advanced Studies, Pisa. Prior to joining the
Sant’Anna School of Advanced Studies he was García Pelayo Fellow at the
Centro de Estudios Políticos y Constitucionales (CEPC), Madrid, and Max
Weber Fellow at the European University Institute, Florence. He is also affili-
ated to several international research centres (among others, the Centre for
Judicial Cooperation of the European University Institute, Florence, and the
Centre for Studies on Federalism, Turin-Moncalieri). There he has been car-
rying out international projects related to comparative federalism and sub-
national constitutionalism and to the constitutional dimensions of EU law
and international human rights law (especially the European Convention on
Human Rights).
 Notes on contributors xi
His research interests cover both comparative and European law, fields in
which he published extensively, including two monographs in English (one
with Elgar and one with Routledge) he has published extensively in inter-
national peer-reviewed journals in three languages (English, Italian and
Spanish). His volumes have been reviewed in top-class reviews. As evidence of
the impact of his research, his first monograph, L’Integrazione Silente (2009),
was quoted in the Opinion given by Advocate General Dámaso Ruiz-Jarabo
Colomer in the Umweltanwalt von Kärnten and Alpe Adria Energia SpA case
decided by the Court of Justice of the European Union (C 205/08). More
recently he was also cited by Advocate General Cruz Villalon in his Opinion on
the Gauweiler (OMT) case and by. Advocate General Tanchev in his Opinion
(ft 45) on Case C-541/16 European Commission v Kingdom of Denmark.
Francis O’Connor is Postdoctoral Researcher at PRIF (Peace Research Institute
Frankfurt). Previously he was Postdoctoral Researcher in the Research
Project “PRIME – Predicting, Interdicting and Mitigating Extremism” at the
University of Aarhus (Denmark) and Research Fellow at the Centre on Social
Movement Studies (COSMOS) at Scuola Normale Superiore in Florence
(Italy). He obtained a PhD in Political and Social Sciences from the European
University Institute in Florence (Italy).
Martín Portos is a Postdoctoral Fellow at the Centre on Social Movements
(COSMOS), Scuola Normale Superiore (Florence). He completed a PhD in
Political and Social Sciences at the European University Institute in February
2017, with a thesis focused on anti-austerity protests in Southern Europe.
His research interests include political participation, social movements, dem-
ocratic attitudes, institutions and nationalism. Martín holds a BA (Hons) in
Political Science from the University of Santiago de Compostela (Regional
and National Award for Excellence in Academic Performance, 2011), an
MSc Politics Research from the University of Oxford and an MRes from
the EUI.
Matt Qvortrup is Professor of Applied Political Science and International
Relations at Coventry University. An expert on comparative constitutional
engineering and European Politics, Professor Qvortrup’s book Angela Merkel:
Europe’s Most Influential Leader was described by Kirkus Reviews as “necessary
reading for anyone who wants to broaden his or her perspective on the world
today” (www.kirkusreviews.com/search/?q=Qvortrup&t=all). Awarded the
PSA Prize in 2013 for his research on “Terrorism and Political Science,” he
served as a Specialist Advisor to the House of Commons Public Administration
and Constitutional Affairs Committee. He has previously worked as a member
of President Obama’s Special Envoy Team in Africa (2009–2010). Before his
career as an academic, Dr Qvortrup served as Head of the Gun Crime Section
in the British Home Office (2002–2004) and before that as a Special Advisor
to the Home Secretary (Minister for the Interior). Professor Qvortrup earned
xii Notes on contributors
his doctorate in Politics at Brasenose College, University of Oxford in 2000.
Also a qualified lawyer, he holds a Diploma from the College of Law, London.
Nikos Skoutaris received his PhD in Law from the European University Institute
(Florence, Italy) in 2009. Since then, he has worked as a Post-doctoral Fellow
at the University of Tilburg, as an Assistant Professor at Maastricht University
(The Netherlands) and as a Senior Research Fellow at the European Institute,
LSE. Since October 2013, he is a Lecturer in EU Law at the UEA Law School.
His research lies in the interface between EU law, comparative constitu-
tional law and conflict resolution theory. His first monograph (The Cyprus
Issue: The Four Freedoms in a Member State under Siege, 2011) has been char-
acterized as “an indispensable piece of literature for anybody interested” in
the interrelationship between the EU and an age-old international conflict.
His second monograph Territorial Pluralism in Europe: Vertical Separation
of Powers in the EU and its Member States (2019) is the end result of his par-
ticipation in a project funded by the European Research Council. He has
also edited a volume (2014) and a special issue (European Journal of Human
Rights, 2013) on the EU Accession to the ECHR.
Apart from the two monographs, Nikos is the author of numerous articles
in leading peer-reviewed journals such as the Cambridge Yearbook of European
Legal Studies, the German Yearbook of International Law, the European Law
Review and the Common Market Law Review.
His most recent research project focuses on the idea of a differentiated
Brexit that would accommodate the different demands of the UK constituent
nations. It has been widely discussed in media such as the BBC, The National
and The Scotsman. It has also provided the basis for a number of pieces
of written evidence he has submitted to the House of Commons and the
Scottish Parliament. Its main conclusions were presented before the European
Parliament. The GUE/NGL parliamentary group of the European Parliament
has entrusted him with writing a policy brief on a special designated status for
Northern Ireland post-Brexit.
His ability to produce research that has a wider social impact was the reason
he received the 2017 UEA Engagement Award for outstanding contribution
to Public and Community.
You can find more information on his website “On Secessions, Constitutions
and EU law” (www.skoutaris.eu/).
1 Introduction

The “amorality of secession” is not a thought-provoking title. It refers to the

approach chosen for this collective volume. According to the Collins online dic-
tionary, “amoral is often wrongly used where immoral is meant. Immoral is prop-
erly used to talk about the breaking of moral rules, amoral about people who have
no moral code or about places or situations where moral considerations do not
apply”.1 Building upon the second meaning of amoral, which refers to a situation
(a secessionist process) in which moral considerations do not apply, this book
avoids entering the terrain of the moral foundations of secession. This interdis-
ciplinary volume does not deal with the subject of the immorality or morality of
secession, but tries to go beyond the traditional approach that has characterized
this field.2
Our idea implies that an account of the morality of secession is interesting for
sure, yet not necessary in order to take secession seriously from a legal and politi-
cal point of view. This does not imply confining morality to a sort of pre-legal
and pre-political sphere or considering moral claims irrelevant, however. Simply,
we try to go beyond this debate about the moral justification of secession and in
this sense we assume that there might be a margin for an amoral (i.e. non-moral)
approach to the relationship between democracy and law. In other words, we do
not put the motivations behind secession into question and do not deny that the
reasons provided by secessionist movements might be well grounded. However,
this volume purports to explore the legal and political issues triggered by the new
wave of secessionism (the one within EU member states). More specifically, those
issues concern the interplay between notions of democracy (and democratic ends
and means) and law (and the rule of law and constitutionalism).
Against this background, we use amorality in order to escape the terrain of
the justification of secession. This book is very far from suggesting that there
must be a univocal approach to this matter; on the contrary, the contributions
gathered in this volume respond to a variety of positions. Despite the different

1 https​://ww​w.col​linsd​ictio​nary.​com/d​ictio​nary/​engli​sh/am​oral
2 A. Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and
Quebec, Westview Press, 1991.
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Photo which

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bull which CHAPTER

the its

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and 61

Ottomar the will

Giraffe

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32 or lie
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Porcupine

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PAGE

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240 Finchley of

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