Accept or reject libertarian copyright laws

Chapter 4. Secession of States in Contemporary Political Philosophy

The task of political philosophy is to work out the conditions under which the secession of states is legally justified. The legal ethics<153> - unlike legal dogmatics - does not deal with the interpretation of positive law, but with its normative justification. The right is viewed and evaluated from an external perspective, not from the user's perspective. The aim of the legal ethical investigation is to assess existing law as just or unjust.

In the literature of international law, the opinion is occasionally taken that an ethical assessment of state borders is fundamentally excluded, so that there is no justice standard for the secession of states.<154> The assessment of existing boundaries as just or unjust sets - if it is considered possible at all - to come to terms with the genesis in a more concrete way


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State borders ahead.<155> However, the historical consideration of individual secession cases is not the subject of this work. Rather, this section presents general, i.e. abstracted, views on the legal ethical justification of the secession of states. Since secessions are connected with the downfall (and possibly also the re-establishment of the state's claims to rule over its citizens and its territory), their legal ethical investigation deals in particular with the normative foundations of legitimate rule. The following is about the abstract assessment of a political community's claims to rule as just or unjust, not about the legitimacy of specific state borders.<156>

Mainly Anglo-American representatives of political philosophy have dealt with the secession problem from a legal ethical perspective and formulated a large number of secession theories that diverge to a greater or lesser extent: in some cases, the secession of states is treated as an exception, in some cases - with certain restrictions - it is considered fundamentally permissible. In the foreground of the legal ethical discussion of the secession problem are the following basic questions:

  • Which groups are allowed to secede?
  • What reasons can justify secession?
  • What means may be used to enforce or prevent secession? May violence be used?
  • Which goals are legally justified?

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The aim of this section is a systematic presentation of the current state of the discussion.<157> For this purpose, the most important secession theories are recorded while at the same time classifying them into the spectrum of theories between the poles of normative collectivism and normative individualism.<158> The following definitions are introduced for the pair of opposites normative collectivism versus normative individualism:

Normative collectivism:

All political decisions find their ultimate justification in the consent, the manifest interests or concerns of a political or at least political legitimacy-conferring collective, ie the state, the nation, the people, society, the community, the ethnic group, the linguistic and / or Cultural community etc.<159>

Normative individualism:

All political decisions find their ultimate justification in the consent, the manifest interests or concerns of the individuals affected by the respective decision, i.e. the people affected.<160>

The terms normative collectivism and normative individualism do not mark exclusive categories. Between the extreme positions of an exclusively individualistic or collectivistic justification program there is a broad spectrum of theories that are more or less collectivistic or individualistic. The subsequent systematization of the


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Secession theories as collectivist or individualistic should therefore not be understood as a clear distinction between the theoretical alternatives. In the first part (I.) a secession theory is presented that is at least mixed collectivist-individualistically justified, while the second part (II.) Primarily contains individualistically shaped secession theories.

4.1 Collectivist Theory of Secession: Theory of the National Right to Self-Determination

A collectivist theory of secession is characterized by the fact that the ultimate justification of the secession of states is seen in the consent, the manifest interests or the concerns of a political or at least political legitimacy-conferring collective. This includes a theory whose justification program is based on the national right to self-determination<161> is established. The starting point of this theory is the consideration that the right of secession, derived from the collective right to self-determination, represents a group right and as such is to be legitimized with reference to a collective. Representatives of a collectivist theory of secession are therefore primarily concerned with the following questions:

  • What characterizes group rights and how are they to be justified in terms of legal ethics?
  • Which collectives can invoke group rights?

From their partially divergent answers, the advocates of the theory of the national right to self-determination derive different requirements for the legal ethical justification of the secession of states.


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Although the theory of the national right to self-determination refers back to collectives, this does not mean that it is exclusively collectivist. In contemporary political philosophy there are only a few advocates of the collectivist view that certain groups have an intrinsic ethical value, that is, they are bearers of original ethical rights and not only derived from individuals (1.). The theory of the national right to self-determination is predominantly justified in a mixed collectivist and individualist way and consequently also traced back to individual interests: Belonging to a more precisely defined group, for example a people or a nation, gives meaning to the individual and is constitutive for the individual's self-interpretation and self-understanding . This view marks the transition from a normative-collectivist to a normative-individualistic theory and could therefore also be presented in the context of individualistic secession theories. For reasons of the uniform presentation of the theory of the national right to self-determination, it is treated below as a collectivist theory of secession (2.).

4.1.1 Collectivist version: the communitarian argument

4.1.1.1 Content and rationale

A representative of the following as a communitarian argument<162> Vernon van Dyke.<163> From his considerations on the ethical foundation of group rights, he derives, among other things, the possibility of one


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Secession law.<164> V. van Dyke develops this argument from his criticism of liberal theories in general<165> and J. Rawls ‘" Theory of Justice "<166> in particular<167>. A theory of justice should not only focus on individuals, but must also consider groups as collective entities: They should be represented in the “original position”.<168>

Groups in the sense of the communitarian argument are sovereign states, nations, peoples and ethnic communities and as such are to be distinguished from mere interest groups.<169> Ethnic communities are primarily subjectively defined as a plurality of people who perceive themselves as a distinct group. Self-identification is based on certain commonalities such as race, tradition, culture, language or religion. It is not imperative that the group considers itself to be a nation with the goal of political autonomy or independence.<170> The assignment of rights to groups does not require that these are state-constituted. The dichotomy of individual rights - rights of the state would not do justice to reality, so that a theory of justice would have to recognize intermediate forms in the form of group rights.<171> These group rights are not only juridical, but also originally ethical and therefore not derived from individuals.<172> The assignment of a right - either to individuals or to a group - is a question of practicability.<173>


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V. van Dyke formulates three special principles of justice for groups, from which, among other things, the external right of self-determination results: “Not only is the right of internal self-determination conceded, as Rawls says, but so is the right of 'peoples' to external self-determination and thus to independence. "<174>

However, it severely restricts the right to independence: the external right to self-determination is potentially explosive and could change the political map worldwide. Political instability and the emergence of civil wars would be the feared consequences of an overly extensive right to self-determination.<175> In addition, group rights could conflict with individual rights. Under no circumstances should groups violate individual human rights. The right to individual equality should not be ignored, but interpreted in terms of the rights of ethnic communities, states, nations and peoples.<176>

4.1.1.2 Criticism

The collectivist version of the theory of the right to national self-determination is to be accepted insofar as a political theory must take into account the social nature of the individuals who have constituted themselves in a political community. However, this does not mean that groups have an ethical intrinsic value that is independent of the individual. This conclusion is impossible because a collective consists of a large number of individuals with very different identities and, in this respect, cannot be compared with one individual. People are not all shaped in the same way by the group and have different attitudes, likes and dislikes. If V. van Dyke suggests the assignment of ethical rights to groups for reasons of practicality, the assumption of a naturalistic fallacy is obvious: Why should the mere existence of collectives lead to the necessity of recognizing them as carriers of ethical rights? From these


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The existence of an intrinsic ethical right for collectives and thus the central statement of the communitarian argument is to be rejected.<177>

Neglecting the fact that collectives are heterogeneous also runs the risk of unduly restricting individual rights. V. van Dyke has explicitly excluded a violation of individual human rights in favor of group rights.<178> However, the question of how to decide in all other cases of collision between individual and group rights remains open.

Another problem of the collectivist view is that there is no distinct definition of the collectives that can be bearers of original ethical rights. There is neither the “idea of ​​cooperation” nor a “group person” with human qualities such as consciousness or reason to be considered as a reference point for ethical rights. The group remains a fictional entity.

Correspondingly, A. Buchanan also rejects a right to independence for all peoples derived from the national right to self-determination due to the vagueness of the term “people” and the resulting dangers: Define “people” on the basis of a common language, tradition and culture the question of how these criteria are to be understood. If one also assumes that the number of ethnic or cultural groups or peoples is not fixed but increasing, this inevitably leads to endless political fragmentation. Apart from instability and economic costs, this would lead to ethically undesirable consequences such as displacement and genocide, which would prohibit the implementation of the theory of national self-determination.<179> V. van Dyke has recognized this problem and has therefore advocated a certain restriction of the national right to self-determination, but at the same time noted that the maintenance of unity and the internal peace of any existing state are not absolute values.<180> He explicitly names two cases of a legally justified right of secession: A group is allowed to secede,


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when their survivability is endangered<181> and their rights as a minority would be violated<182>. Nevertheless, it ultimately remains unclear where the line between an adequate and an excessive national right of self-determination runs.

4.1.2 Mixed collectivist-individualist version

4.1.2.1 Argument of distributive justice

4.1.2.1.1 Content and rationale

According to David Miller, a group has a prima facie right to secession if it meets the following criteria: “The first is that the group should form a nation with an identity that is clearly separate from that of the larger nation from which they wish to disengage . The second is that the group should be able to validate its claim to exercise authority over the territory it wishes to occupy. "<183> D. Miller bases his theory of the national right to self-determination on an argument of distributive justice.<184> Against the background of a particularistic interpretation, national borders are ethically important, since nations promote distributive justice: the obligations we owe our compatriots are greater than those we owe strangers.<185> Nationality is de facto the main source of solidarity within large, anonymous states. In societies oriented towards the market economy, there is a tendency towards atomization, everyone strives only to satisfy their own interests, with the result that it is difficult to mobilize citizens for redistribution


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could. These problems would be avoided if there was solidarity based on a feeling of belonging to an overarching community - the nation.<186>

D. Miller defines "Nation" as follows: "[...] a group of people who recognize one another as belonging to the same community, who acknowledge special obligations to one another, and who aspire to political autonomy - this by virtue of characteristics that they believe they share, typically a common history, attachment to a geographical place, and a public culture that differentiates them from their neighbors. "<187> He considers the definition of nations based on objective criteria such as language, race or religion to be inadequate. Nationality is a subjective phenomenon based on common historical and enduring ideas. These ideas need not necessarily correspond to the truth<188> still be directed towards independence in a separate state, which is characteristic of classical nationalism; the desire for political autonomy is sufficient<189>.

If a nation wants to assert a right of secession, it must be entitled to the territory affected by the separation, since states, by definition, exercise sovereignty over a certain area. Such a claim does not result from the aggregation of property rights. Through habit and practice, as well as explicit political decisions, a people shapes, among other things, the physical appearance of the territory. It buries its dead in certain places, erects monuments, etc. with the result that over time a symbolic meaning of the territory arises, which justifies the continued exercise of political rule over the area and purely historical claims of rival groups, which are based on territorial sovereignty


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called by their ancestors prevail.<190> But when could the existing state claim to maintain its rule over the territory affected by the secession? The answer to this question depends on the historical development of the relationship between the two groups. If there had never been a real political community, for example because one group forcibly occupied the territory of the other, the rule of the state over the area in question would not be legitimate. If one group has made investments in the area populated by the other group, however, compensation payments would have to be made. In the event that both groups formed the political community as free and equal partners, the legitimate demands of the groups would have to be weighed. If a compromise solution is not possible, there are good reasons to find a solution that grants the group willing to secede some form of autonomy shortly before independence.<191>

According to D. Miller, restrictions on the law of secession arise from the requirements of minority protection (1) and distributive justice (2).

(1) Protection of minorities. Often a secession leads to an exacerbation of minority conflicts. The idea that a nationally homogeneous group splits off from a heterogeneous community is unrealistic. Every group includes minorities, and secession means replacing one heterogeneous community with two in some ways heterogeneous communities.

This problem could not be solved by allowing any secession if a majority of the residents of a certain area are striving to secede.Instead, a secession must be qualitatively assessed taking into account the nationality principle, which in no way implies the formation of absolutely homogeneous states. Rather, it should be checked whether the


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seceding group that guarantees to protect the rights of minorities. There is a positive prognosis in this regard if the national identity of the secessionists leaves room for cultural differences. A mere commitment to respecting minority rights, however, is insufficient.<192>

The rights of the minorities of the rest of the state must also be preserved. A secession should not lead to a destruction of the political balance and in this way put minorities in a very weak position.<193>

As an exception, the creation of nationally homogeneous groups must be considered: If two nations cannot live peacefully with one another on a common territory and their cultures are radically incompatible, the resettlement and formation of two more or less nationally homogeneous states will be necessary.<194>

(2) Distributive Justice. In the event of a secession, problems of economic distributive justice have to be solved. A state should not be placed in a state through secession in which the satisfaction of the basic needs of its citizens is impossible. Both the remainder of the state and the state newly created by secession would have to be able to survive as political communities.<195>

Although D. Miller evaluates national self-determination positively in principle, he explicitly opposes an unlimited right of secession because of the dangers involved.<196>

4.1.2.1.2 Criticism

The argument of distributive justice, like the communitarian argument, suffers from the unclear relationship between the right to national rights


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Self-determination as a group right and the individual rights of group members. There is a suspicion that in collision cases, the emphasis on the ethical meaning of nationality could prejudice the priority of the national right of self-determination over individual rights. Against the thesis that national self-determination promotes distributive justice and is therefore ethically meaningful, we must report far-reaching concerns:

If nations were ethically significant and special duties existed between compatriots, but at the same time not concrete practices, but sentimental ties and historical understanding were the basis of national identity, justice would become a mere subjective idea.<197>

Against this objection, D. Miller argues that the obligations did not depend on the feelings between compatriots as persons. Rather, the decisive factor is the role of political culture within national identity. One feels belonging to a group through a certain way of life, which is expressed through public culture. The content of the obligations stems directly from this culture. For example, a Swede would recognize more extensive duties than a North American, because the Swedish culture is based on solidarity, whereas the North American culture is individualistic.<198>

However, it remains questionable how the content of a culture can be determined. Since the concept of culture is very vague, the direct derivation of special duties from a public culture appears problematic. Incidentally, D. Miller neglects with his argument that people can have very different interests within a cultural context, which may not be reflected in political culture. There are likely to be Swedes who recognize little duty to their compatriots, just as there are North Americans who want a more solidarity-based political community. Why these interests should have less weight than those of other citizens is not explained.


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D. Miller is to be supported insofar as it is not the aggregation of ownership rights but an actual relationship to the territory in question that determines the legitimacy of territorial sovereignty. Any further balancing between the state's interest in maintaining its territorial sovereignty and the secessionists' interest in reestablishing political rule over the territory is, contrary to D. Miller's opinion, not to be undertaken with a view to the historical development of the relationship between the two groups. but only with reference to the current peculiarities of the territory, e.g. B. the existence of collective goods and mineral resources, the geographical location or the natural spatial fundamentals such as climate, geology, soils, etc. or by other, z. B. strategic, agricultural or industrial use. Historically based relationships to a certain territory, on the other hand, suggest the existence of property-like claims, which are to be rejected due to the limited nature of the habitable territory on earth and the randomness of the habitat (and which D. Miller also rightly rejected): Inhabitable land is a basic condition of human life . Since the habitable territory is a scarce commodity and there are no other habitats for people - at least at the moment - the world population has to share the available land. There is no apparent reason to justify an unequal distribution of the habitable territory so that all people have equal rights to the habitable land. As a result, property rights can only exist in certain pieces of land, but not in territories as places where people live together.

The restriction of the right of secession for reasons of minority protection cannot invalidate the objection that has already been raised against the collectivist version of the theory of the right to national self-determination: the emphasis on national identity is exclusive and conceals it


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Risk of discrimination against strangers within yourself.<199> The integration of other groups into a political community based on a special sense of togetherness will remain problematic regardless of the prognostic decision required in D. Miller's view of whether the secessionists offer the guarantee of protecting minority rights in the future.

The further restriction that the satisfaction of the basic needs of the citizens of both the rest of the state and the newly emerging state should not be jeopardized by the secession seems plausible. However, D. Miller does not make it clear why the secessionists have to take into account the economic situation of the citizens of the rest of the state and why the right of secession is only to be rejected if the basic needs of the citizens are no longer secured, and not already when the secession results considerable economic disadvantages result.

4.1.2.2 Argument about the well-being (of the members) of the people

4.1.2.2.1 Content and rationale

The view of Simon Caney is presented as an argument on the welfare of the people.<200> National self-determination promotes the well-being of the people with the result that - taking into account internal and external conditions - a national law of secession must also be justified.<201> S. Caney develops his argument that national self-determination is valuable ceteris paribus in three steps: (1) Political institutions that promote the well-being of the people are all in all valuable. (2) Membership in a nation promotes that


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Wellbeing of an individual. (3) A nation-state can best promote a nation's culture.<202>

(1) The first assumption is easily plausible, since people are generally concerned about their well-being and their quality of life and this should reasonably be taken into account in a political system.<203>

(2) In defense of the second assumption, S. Caney puts forward two arguments: On the one hand, individual freedom presupposes that individuals have a choice between different conceptions of the good. A national culture is said to be rich and diverse and to this extent an important source of such concepts.<204> On the other hand, belonging to a community is part of a fulfilled life. Everyone felt that being part of a community was valuable, and for many, membership in a nation was an important source of wellbeing.<205>

(3) The third assumption would also be supported by two considerations: on the one hand, national self-government is the institutional framework in which people's interests in their national culture are best represented and political measures can be taken to protect this culture. On the other hand, a nation state is of symbolic importance for a national culture that a multinational state cannot guarantee.<206> The dichotomy of this argument is based on the distinction introduced by A. Margalit and J. Raz between an "instrumental argument" and an "argument for the intrinsic value of self-government": the instrumental argument is used to justify the fact that the members of a group must have the opportunity to participate politically. Is self-determination beyond that


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intrinsically valuable, even political boundaries must be aligned with those of the group.<207>

Similarly, Avishai Margalit and Joseph Raz justify the legal ethical justification of the national right to self-determination with the well-being of the members of the people.<208> In contrast to S. Caney, who refers his argument exclusively to nations,<209> A. Margalit and J. Raz extend their view to other groups as well. The combination of several characteristics make certain groups ("encompassing groups")<210> suitable candidates for self-government. Decisive criteria are a common culture that touches many important aspects of life and shapes those who grow up in the group, and a high social value of membership for the individual self-image.<211> The ethical value of self-determination is explained by the importance of the group for individual well-being. However, it does not follow from this that group interests can be reduced directly to individual interests. In this way, the group can prosper without necessarily improving the individual's situation.<212> The interest of the members in the group’s prosperity does not necessarily justify a right to self-determination. Rather, what is needed is an instrumental connection between the two in the sense that political independence is useful and sometimes necessary for promoting one's own affairs. A further intrinsic argument, for which the public manifestation of membership is essential and thus ultimately at the same time the political dimension of the group, reject A. Margalit and J. Raz im


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Contrasted with S. Caney. The possibility of political participation, which multinational states can also guarantee, is sufficient. It is therefore not necessary that the political boundaries match those of the group.<213>

Even though A. Margalit and J. Raz argue in a hedonistic-utilitarian way by referring to the well-being of the group members, and thus at least indirectly attribute the right to self-determination to individual interests, the right to self-determination they postulate is a mixed collectivist-individualistically justified group right: Groups are predominantly defined in a non-voluntary way and national self-determination is presented as a group right that is not decided by individual opinions, but rather by the collective will of the group.<214> A. Margalit and J. Raz explicitly reject a contractualistic-individualistic theory: “The right to self-determination derives from the value of membership in encompassing groups. It is a group right, deriving from the value of a collective good, and as such opposed in spirit to contractarian-individualistic approaches to politics or to individual well-being. It rests on an appreciation of the great importance that membership in and identification with encompassing groups has in the life of individuals, and the importance of the prosperity and self-respect of such groups to the well-being of their members. "<215>

Neither S. Caney nor A. Margalit and J. Raz advocate an unlimited national right of self-determination,<216> In particular, they reject an unrestricted right of secession:

In S. Caney's view, national self-determination justifies the secession of a nation from a multinational state only if other values ​​and peoples are taken into account. A secession can only be legitimate if the secession nation fulfills further criteria. S. Caney refers to these additional conditions as "internal contraint" and


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“External constraint”: While the former demands the fair treatment of citizens by the new state, the latter demands compliance with international obligations and the fair treatment of non-citizens. It is sufficient, however, that the situation of citizens and non-citizens does not deteriorate compared to that in the previously existing multinational state.<217> In addition, the state created by secession must be able to survive. Otherwise he would not be able to promote the welfare of the people.<218>

A. Margalit and J. Raz also reject secessions that violate the rights of citizens and residents of other countries.<219> A prerequisite for a justified secession is also that the seceding group forms a substantial majority in the area affected by the split. The application of the simple majority principle reflects a contractualist position that contradicts the concept of national self-determination as a group right.<220>

4.1.2.2.2 Criticism

As against the above-mentioned arguments, the argument about the well-being (of the members) of the people is objected to, that national self-determination can lead to abuse of rights against the own people and also endanger the international order and stability.

With regard to the first objection, S. Caney concedes that, although some national governments treated their peoples badly, this circumstance should by no means lead to a complete rejection of national self-determination. If one defends national self-determination only in those cases in which the nation in question respects individual rights, a multitude of efforts for independence would nevertheless be justified.<221>


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The fear that the stability of the international order would be jeopardized by national secessions is unfounded by S. Caney. In the past, secessions did not lead to new aspirations for independence. Even if other nations were inspired by a secession to appropriate independence movements, the instability of the international order would not be an inevitable consequence. Incidentally, the existing international order should not be overestimated. The stability of this order is only worth preserving if otherwise fair and just states would be endangered. After all, it is often only the maintenance of a multinational state in which one nation dominates that leads to unrest among the minority nations.<222>

S. Caney's reply deserves approval. Not the recognition of a justified secession, but its unjustified rejection threatens the internal peace of a state and at the same time the stability of the international order. Moreover, independence in a separate state is not a desirable goal for many groups for practical reasons. B. because no effective government has been established or the economic situation does not allow the establishment of a state.

The definition of the bearers of the right to self-determination (“encompassing groups”) proposed by A. Margalit and J. Raz is problematic insofar as groups cannot be easily delimited, either territorially or personally. Groups are not homogeneous, but contain other groups, so that minority conflicts could arise.<223> Besides, there is no reason to only recognize cultural groups as nations. If one included ethnic and solidary groups, conflicting criteria could not be avoided, with the result that a group could be part of several nations.<224>


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Finally, the communitarian thesis that individual goals and relationships are culturally determined must be rejected. Belonging to a culture may have great significance for one or the other, but it is not irrevocably imposed on the individual from the outset. Rather, it can be terminated even if this is associated with inconvenience, and is therefore freely selectable. For F. R. Tesón this shows the fundamental difference of opinion between liberals and communitarians: The possibility of the individual to question any cultural practice, to reject it if necessary and to break away from it, is one of the most important basic assumptions of liberalism. In this respect, a liberal-democratic community must be based on some form of consent. A non-voluntarist foundation of group membership is incompatible with this.<225>

4.1.2.3 Argument of cultural preservation

4.1.2.3.1 Content and rationale

Compared to the two previous variants, the argument of cultural preservation<226> established a considerably weaker law of secession.According to Allan Buchanan, secession for the purpose of preserving a culture is justified under the following restrictive conditions: “(1) The culture in question must in fact be imperiled. (2) Less disruptive ways of preserving the culture (e.g., Special minority group rights within the existing state) must be unavailable or inadequate. (3) The culture in question must meet minimal standards of justice (unlike Nazi culture or the culture of the Khmer Rouge). (4) The seceding cultural group must not be seeking independence in order to establish an illiberal state, that is, one which fails to uphold basic individual civil and political rights, and from which free exit is denied. (5) Neither the state nor any third party can have a valid claim to the seceding territory. "<227>

The argument of the preservation of culture is based - like the argument of the well-being of the members of the people - on the assumption that a culture for


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the life of the individuals belonging to it is valuable and therefore worth protecting. The cultural community forms a valuable context for the individual's freedom of choice.<228> In this way, culture creates an appropriate structure for individual striving for a good life. Participation in a community is not only a structural condition for the successful pursuit of other goods, but also an important component in itself in the understanding of most individuals of a good life and to this extent a fundamental intrinsic good.<229> It is questionable, however, whether these considerations result in a right to cultural preservation that justifies secessions. Even if this right existed, it could in any case not generate any claim to the continued existence of a special culture. An individual just needs to be able to belong to any culture. The problem is that individuals often want to hold on to their declining culture, even if this is harmful to them. This creates a dilemma: should one respect the members ’wishes to preserve their culture and offer them help that is ultimately detrimental to individuals, or should one increase their welfare, even if that means rejecting their election?<230> Incidentally, the argument of cultural preservation must have such weight that it generates a claim to territory. This is only the case when autonomous control over the territory is practically necessary, that is, the only effective way to preserve the culture. Consequently, the question arises whether a group could gain other forms of control over the territory than full sovereignty and whether this alternative would be sufficient to protect the endangered culture. Contractually guaranteed or the invention of new collective ownership rights, language rights or constitutional veto rights for the group could be considered. Another option would be to empower the group to create barriers for non-members to enter its territory and to impose costs on members wishing to leave the area. Provided that these special group rights respect the majority principle

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If implemented, they could be seen as an example of the self-binding of the group - that is, the restriction of the freedom of the members in favor of the collective good of cultural preservation. So there are a number of milder means than secession to protect endangered cultures. For this reason, the argument of cultural preservation is of limited significance.<231> Finally, a secession is ruled out if the state or a third party has a claim to the territory affected by the sought-after secession.<232>

The right of secession, which is justified with the argument of cultural preservation, is subject to severe restrictions:

Because the value of cultural membership is not limited to membership in a particular culture and individuals whose culture is damaged could successfully adopt another culture, a guarantee of the existence of any individual culture should be rejected. A. Buchanan cites two further reasons for the need to limit the right to cultural preservation: On the one hand, there is not enough space and other resources to guarantee the autonomy of all cultures. On the other hand, immoral cultures such as Nazi cultures deserve no protection.<233>

In addition, an otherwise justified secession could be inadmissible if it pursued the goal of founding an illiberal state. The separatists wanted to live voluntarily in such a political community and at least partially renounce their liberal rights, but at the same time also wanted to participate in decision-making for later generations or members who were not allowed to vote. However, this only applies if leaving the illiberal state is prohibited, but not if every citizen can freely decide to remain in this political community. This results in a liberal paradox: in the former case, secession should be prevented - if necessary with illiberal means such as violence - and in the latter case the establishment of the illiberal state should be accepted. In the context of a liberal political theory, either the use of illiberal means or the pursuit of an illiberal


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In order to be justified. Any other decision would go beyond the scope of a liberal theory or would be strictly paternalistic.<234>

4.1.2.3.2 Criticism

The conditions that, according to A. Buchanan's argument of cultural preservation, must necessarily be met for a legally justified secession are problematic:

With regard to the first prerequisite, the question arises why, in order to recognize a right of secession, the extermination of culture must be threatened. If a culture is valuable to the lives of individuals, so is a political community that promotes that culture to a greater extent than any other political community. Consequently, the prerequisite for a justified right of secession would have to be that the secession aims to establish a state that supports culture more strongly than the previously existing multicultural state.<235>

It is also questionable why a secession should only be justified if there is no milder means available that would also guarantee the preservation of the culture. Why should a secession be ruled out if this is the easiest and safest way to preserve the culture or if its members prefer this path to other political mechanisms?

In addition, it is not clear why secession should be inadmissible if the state or a third party has a claim on the territory affected by the secession. This condition implies that established rule over a territory is fundamentally sacrosanct. With the help of the argument of cultural preservation, however, it is precisely to find out whether a break in territorial sovereignty is not exceptionally justified because independent rule over the area is the only way to preserve a culture. The question of the claim to the territory affected by the secession is therefore inadmissible at this point.<236>


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Apart from that, it is doubtful anyway whether secession is a suitable means of preserving a culture. Keith Dowding believes that maintaining a culture requires not just political separation, but also isolation.<237> Wherever cultures were in direct competition, minority culture would disappear in the broader cultural context. Only a territorially distinct community with relatively impermeable borders can prevent the erosion of cultural identity. This can be illustrated with the help of a model applied to language as a cultural asset. After that, the language of the majority would prevail over the language of a minority because of its usefulness - that is, the ability to communicate with a larger group. This result is paradigmatic for other aspects of culture. The importance of the model lies in the recognition that a minority culture can lose its identity through the individual choice of its members, even if they are worried about the cultural loss. This also makes the need for a distinct territory clear. The usefulness of learning a foreign language depends on the level of interaction with the foreign language speakers. This in turn is influenced not only by how many foreign language speakers there are, but also by the likelihood of meeting them. In a mixed-linguistic territory with open borders, the probability is considerably higher than in homogeneous territories with relatively impermeable borders. The model thus demonstrates that secession is not enough to maintain a culture: isolation is necessary for this.<238>

Since the isolation of a culture in a world that is characterized by increasing globalization is unlikely to be realistic, doubts remain as to whether the preservation of a declining culture is even possible. Regularly, individuals will have good reasons to turn away from a particular culture. Even if the loss of culture ultimately goes against their own interests, it is based on the free choice of individuals. Receiving the unwanted


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In such a situation, culture would only be conceivable through the application of considerable political coercion.<239>

Fernando R. Tesón also believes that self-determination and special group rights that serve to preserve a culture lead to excessively repressive politics. The downfall of a culture is based on the fact that its members prefer another culture. If people made their choice against the original culture, it could not be protected by the right to self-determination. Against the will of the citizens, a new sovereign government could only preserve the endangered culture through the use of state violence. Self-determination and special group rights as a solution to the demise of a culture would therefore often justify the application of statutory law that restricts the free choice of group members in a way that is incompatible with the autonomy of the person.<240> Nor can the argument of cultural preservation be justified as a solution to the dilemma of public goods. Political economy understands public goods as those that are not individually parceled out and do not exclude anyone from the point of view of the subject.<241> The dilemma arises when people sometimes unconsciously achieve an undesirable collective result by making certain individual choices that others make in a similar way.<242> The public goods literature suggests that such market failures require government intervention to help people do what they want to do. After that, a secession would be necessary to form a government that could correct a market failure and give the members' preference for the public good (preservation of culture) the force of law. This view is based on the premise that all group members want the public good in question, either with or


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without their contribution. The assumption is wrong, however, because there are people who are neither interested in the production nor in the consumption of the good. Incidentally, the justification of state coercive measures to support a public good is not sufficient to state that the good is "public". If you want to force some people to support other people's projects, you also have to show that this is actually a "good".<243>

The argument of cultural preservation is therefore fraught with numerous ambiguities: How strongly are individuals shaped by a certain culture? What does culture mean? Which cultural values ​​and practices can be accepted? Finally, it remains doubtful whether maintaining a special culture is possible and necessary for the well-being of individuals. Not least for this reason, a right of secession based on the argument of cultural preservation must be rejected.

4.1.3 Summary: collectivist secession theory

Although the theory of the national right to self-determination is justified very differently in each individual case, the arguments mentioned have some similarities or similarities:

  • Secession law is a special group law, the legal ethical justification of which is either not at all (collectivist version) or only indirectly (mixed collectivist-individualistic version) based on the interests of the group members. It is consequently not directly reducible to individual interests.<244>
  • The much larger group of representatives of a mixed collectivist-individualistic position names the promotion of distributive justice or the well-being (of the members) of the people as the interests of the group members who mediate the right of secession. If one assumes

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    that the well-being of group members is increased by promoting distributive justice equally, the latter represents the broader interest. Pointed - and at the same time simplified - the mixed collectivist-individualistic version of the theory of the national right to self-determination can be summarized as a prima facie right to secession exists when it serves the welfare (of the members) of the seceding group.
  • Both the advocates of the theory of national self-determination and their critics advocate a restriction of the right of secession: Reasons that outweigh the prima facie right to secession are, in particular, the risk of fragmentation of the international community with its feared negative consequences and the threat of legal violations against citizens of the new state, for example minorities, as well as the rest of the state.
  • Groups that can invoke a right of secession are sometimes referred to and defined differently. There is agreement insofar as sovereign states are always recognized, while mere interest groups are never recognized as bearers of group rights. Furthermore, nations are identified as groups with their own rights (“national” right of self-determination). However, there is no uniform definition of the term “nation”. The same applies to “peoples”, “ethnic communities” and “encompassing groups”, which are also up for discussion as bearers of group rights. However, the attempts at definition show numerous similarities. A subjective criterion, such as self-identification, predominates, although in most cases this is supplemented by objective criteria such as language, religion, tradition, culture, race.

4.2 Individualistic secession theories

The justification program of individualistic secession theories refers to the consent, manifest interests or concerns of the people affected by the secession. Representatives of individualistic theories approach the secession problem from different directions:


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In part of the literature, the focus of the discussion is on the ethical evaluation of the possible reasons for a right of secession. The reasons given to justify secessionist efforts are of very different nature. A. Buchanan discusses, for example, practical reasons for a right of secession, such as “making it easier to join a political union” or “increasing efficiency”.<245> In the context of a legal ethical investigation, however, practical rather than ethical reasons are of subordinate importance. The first part of this section (1) is therefore limited to the presentation of the injustice theory, which deals with ethical reasons for a right of secession.

According to another view held in the literature, the reasons put forward for a right of secession are irrelevant. For the legal and ethical justification, it is primarily crucial that a group has spoken out in favor of secession. Since an excessive right of secession does not appear to be justified, various restrictions are defined. This conception, known as choice theory, is presented in the second part (2).

4.2.1 Injustice Theory

According to the injustice theory, a secession is justified from a legal ethical point of view if the members of the seceding group are either currently suffering or have suffered injustice in the past. There are two versions of this theory, which differ in the type of injustice: According to the territorial version, it must be a historical injustice, which in all cases of illegitimate rule over the territory legally claimed by the seceding group by the one affected by the secession State is present (a). The personal version, on the other hand, assumes that the group members as such are victims of ongoing unjust treatment (b). Accordingly, the first version of the right of secession is based primarily on the loss of legitimate rule of a state over its territory, while the second version bases the right of secession on the loss of legitimate rule of a state over its citizens.


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4.2.1.1 Territorial version

4.2.1.1.1 Content

The main proponent of the territorial version of the injustice theory is L. Brilmayer.<246> The starting point of their argument is the consideration that demands for secession are always connected with claims to certain territories, which fundamentally conflict with the principle of the territorial integrity of the states concerned. Secessions are only compatible with this principle in exceptional cases: a state cannot invoke its territorial integrity if the seceding group has a claim to the territory it has settled. Such a claim exists if the group is the victim of a historical injustice. An annexation, colonization or the involuntary connection of the territories of two states by a third are considered historical injustices.

With her theory, L. Brilmayer turns against the legal dogmatic conception of the peoples' right to self-determination, from which the right of secession is derived. The international legal discussion of the secession problem suffered from an overemphasis on the ethnic question. As a result, the law of secession becomes inextricably tense with the principle of territorial integrity. After all, the ethnic distinctness of a group from the rest of the population of the state alone cannot generate a claim to a specific territory. Secession, as a legal remedy aimed at the separation of a certain territory, must be justified by a claim to the territory in question. Therefore, instead of the ethnic, the territorial question is in the foreground. However, the controversy surrounding the concept of the people is by no means irrelevant for establishing a claim to a certain territory. Rather, the claim only exists if the historical injustice that justifies it continues to have an effect. This presupposes a broad ethnic identity between the group currently populating the territory and those who suffered the historical injustice. Only under these circumstances can a group make credible that it has been affected by past events up to the present.


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L. Brilmayer limits the right of secession because she recognizes that the territorial version of the injustice theory can run into problems in practice: historical injustice and thus the claim to the territory in question could be difficult to prove in some cases. Even if the evidence were successful, conflicting interests might be worth protecting and should therefore be taken into account so that the claim should not be enforceable.<247> For these reasons, it proposes a number of criteria which, in the event of conflicting interests, should allow a claim for secession to be assessed as legally justified.<248> The law of secession is all the stronger,

  • the shorter the historical injustice,<249>
  • the more serious the historical injustice is,
  • the more emphatically the group concerned has complained about the infringement in the past and
  • the lower the foreign settlement of the affected territory.

L. Brilmayer, however, points out that there is a risk of manipulation by the state and that the last two criteria are therefore of less informative value: On the one hand, the complaint of historical injustice can be suppressed by threatening state sanctions; on the other hand, targeted foreign settlement of the Territory possible.


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4.2.1.1.2 Criticism

The basic idea of ​​the territorial version of the injustice theory deserves approval.<250> Colonization, annexation or the involuntary connection of two territories by a third are injustice, so that retribution is fundamentally ethically justified:<251> "The right to secede, under these circumstances, is just the right to reclaim what is one’s own."<252>

However, the exclusively territorial solution to the problem of secession is to be rejected for various reasons: The prerequisite for this theory is that certain state borders are assessed as just or unjust with regard to historical events. Only in this way can the existence of an indubitable title on the territory claimed by the seceding group be proven. The theory is therefore based on the idea that there is a “just status quo ante”, “a historical time before the fall of man”.<253> C. Chwaszcza rightly objects that this is an illusion that “inevitably leads to aporia because no legitimate beginning can be found”.<254> L. Brilmayer's proposal to limit the temporal extension of the right of secession,<255> is only of a pragmatic nature and cannot refute the theoretical objection.

In addition, the theory is based on the erroneous assumption that rule over a certain territory is a kind of property right.<256> Anyway you


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the territorial sovereignty of a state or the territorial claim of a group qualifies: a property-like quality is in any case to be rejected from a normative-individualistic perspective, since the state or the group administers and defends the area for the citizens. Territorial sovereignty is therefore a kind of legal power, but not a special right of ownership.<257> F. R. Tesón rightly points out that the territorial claim of a group is also not the sum of private property rights. Otherwise, a group could claim a certain territory if its members own the land in question. However, this is a misconstruction of the term "territory", which is ultimately the place to exercise sovereign rights that were transferred to the respective government by the social contract.<258>

In addition, the right to a certain territory is neither a sufficient nor a necessary condition for a legally justified right of secession.<259> A secession affects not only the question of the legitimate rule of a state over its territory, but also that of the legitimate rule over its citizens. With her theory L. Brilmayer turns against the neglect of the former and the overemphasis on the latter. By allowing exclusively territorial grounds for a right of secession, it makes the same mistake in reverse. From an ethical point of view, for example, it is extremely questionable to deny a group, whose members are exposed to serious legal violations by the state, a right of secession only because they have no claim to the territory in the sense described above.<260> Likewise, it is questionable whether a secession that is sought for the purpose of violating the law is justified in terms of legal ethics because of an existing claim to the territory


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to explain. F. R. Tesón correctly formulates: “Territories are not mere objects of titely; they are loci for rights. "<261>

4.2.1.2 Personal version

4.2.1.2.1 Content

In the literature, the personal version of the injustice theory is predominantly represented.<262> According to this, the law of secession is designed as a kind of emergency law:<263> Secessions are only ethically justified if the members of the seceding group are victims of massive injustice and no other way out of the injustice is apparent. Proponents of this theory mainly discuss two variants of unjust treatment: the unjustified incorporation of a region into a larger union and the evident and blatant violation of the human rights of group members.

Secession as a legal remedy against the unjustified incorporation of a region into a larger union has already been presented in the context of the territorial version.<264> It should be noted, however, that advocates of the personal version of the injustice theory reject the exclusively territorial interpretation of the secession problem, since the claim of a group to a


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In their opinion, certain territory is neither a sufficient nor a necessary condition for a right of secession.<265>

Case groups of the second variant are violations of physical or psychological integrity, disregard of basic civil rights or prevention of political participation as well as economic discrimination.<266> However, the unjust treatment must be massive and systematic.<267> For example, human rights violations that have been committed in the past and have no impact on the present or that the group is merely politically or economically disadvantaged are not sufficient. It is irrelevant whether the state itself actively brings about the legal violations or is responsible for the legal violations by other groups or states due to neglect of its duty to protect. Furthermore, there should be no more lenient means than secession that could end the massive injustice just as effectively. The separation of the territory must be the last resort, because only in this case does the law of secession outweigh the state's right to territorial integrity.<268>

Various arguments are used to justify the personal version of the injustice theory:

According to Allan Buchanan violated a state that is subject to discriminatory redistribution<269> to the detriment of a particular group is guilty of


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Social contract. This is concluded for mutual benefit, so that the exploitation of one group for the benefit of another is inadmissible. As a result, the state loses the legitimacy to exercise political rule over the members of a group that it systematically and massively discriminates against. If there is no other way to escape this fundamental injustice, the affected group has a claim to the territory that they colonize.<270>

Anthony H. Birch, one of the main proponents of the personal version of the injustice theory, justifies his position with the fact that in liberal democracies a right of secession is not necessary, since fair trials ensure the influence of all groups on political decisions. Both the freedom of expression and the freedom of assembly gave minorities the opportunity to gain more influence in the future and, if necessary, to obtain a majority of votes in elections. If groups can invoke these rights without fear of reprisals, there is no reason to grant them freedom of secession beyond that. On the contrary: a right of secession would lead to the destabilization of a balanced and tolerant system. Groups could use threats of secession strategically against decisions of the majority they oppose, undermining the majority principle. In addition, minorities would be disadvantaged who, due to a lack of territorial concentration, could not invoke a right of secession.<271>

Wayne Norman argues similarly: In addition to the danger that separatists could corrupt democratic culture with the help of threats of secession, there is also the threat of oppression of minorities in those affected by secession


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Area. In addition, secession efforts are regularly associated with bloody disputes. Because of these high "costs", secessions are only exceptionally justified, namely in cases in which the costs are to some extent offset by considerations of equity. If a state only exercises legitimate rule over its territory as long as it treats the citizens within that area fairly, this is also an incentive for sovereign states to respect the protection of minorities.<272>

However, even if the aforementioned requirements are met, secession is not ethically justified in individual cases if the group affected by the violation of the law culpably provoked the unjust treatment.<273> In addition, the seceding group must acknowledge human rights. If the separation of the territory is sought in order to establish an injustice state, there is basically no right of secession.<274>


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Secession is only justified in the unrealistic case where the citizens of the illiberal state that guarantees freedom to leave the country have chosen to do so.<275>

In order to enforce a ban on secession, A. Buchanan considers violence to be a justified means under very restrictive conditions.<276> F. R Tesón also affirms the violent prevention of secession in certain exceptional cases, which he does not specify.<277>

4.2.1.2.2 Criticism

A fundamental objection must be raised against the premise of the personal version of the injustice theory: The fundamental restriction of secessions is incompatible with a theory that postulates freedom as the ultimate value. For this reason, the recognition of a right of secession does not depend on whether other civil liberties are available that intervene less intensively in the political community. Rather, not only the rights within an existing state, but also the unity of the state as such must be voluntarily accepted. Therefore, even if a group has chosen to join a state in a democratic referendum, consensual incorporation is to be rejected as irrevocable


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To see the conclusion of a contract, especially since future generations would be affected by it.<278>

L. Brilmayer, advocate of the territorial version of the injustice theory, also objects to the personal version that unjust treatment cannot justify a right of secession, but only a right to refrain from unjust treatment. Ultimately, the legal remedy of secession is linked to a territorial claim and can therefore only be justified by territorial arguments.<279>

What speaks against this objection is that, from an ethical point of view, a right of secession should exist if no better treatment can be achieved. In this case, the state's right to territorial integrity must take a back seat.<280> In this respect, the personal version of the injustice theory deserves approval.

4.2.2 Choice Theory

Electoral theory is characterized by the fact that the requirements for justified secessions are defined on the basis of freedom of secession. The conviction that every liberal political theory must be rooted in the freedom of the individual forms the common basis of the more or less strongly diverging approaches. In contrast to the injustice theory, the representatives of electoral theory deal primarily with secessions in liberal states and - if at all - only secondarily with secessions as a result of illiberal treatment of the members of certain groups. They want to show that the general limitation of justified secessions to those cases in which the secessionists have suffered injustice is incompatible with a liberal political theory. In doing so, they in no way express that they justify the case groups of the injustice theory


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Reject secessions. Rather, they intend to expand the injustice theory to include cases of justified secessions in liberal states.

In practice, electoral theory basically presupposes that a majority of the members of a group strive for secession: individuals make use of their freedom by “voting” for secession by referendum. However, since no advocate of electoral theory considers unlimited freedom of secession to be justified, the choice of secession is merely a necessary but not a sufficient condition for its legal and ethical justification. The additional conditions that must be added depend on how the limits of freedom of secession are defined. Restrictions of different strengths are introduced, which in turn is due to the fact that the basis of legitimation for the restriction of the freedom of secession is controversially discussed.

4.2.2.1 Liberal Democratic Version

4.2.2.1.1 Content and rationale

The liberal-democratic version of election theory is advocated by Harry Beran.<281> In his view, secession is justified if it is actually desired by a territorially concentrated group within a state and if it is ethically and practically possible.<282> H. Beran bases his argument on (1) freedom, (2) sovereignty and (3) the majority principle.

(1) freedom. Liberalism is characterized by the recognition of freedom as the ultimate value. If one considers individuals to be rational and self-determined, freedom is necessary in order not to restrict their decisions about their goals and beliefs. Unlike anarchists, however, liberals accepted state constraints insofar as they were necessary in order to place greater restrictions, for example due to nature or social conflicts


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avoid. The ideal society, however, is structured as freely as possible. The unity of the state itself is based on a voluntary decision of the individuals, so that secessions should, if possible, be allowed. The basis of state unity is therefore consent. However, the approval of the founding fathers is not decisive, since in a liberal context of the aforementioned type this could not develop any binding effect for the following generations. Contrary to the view of John Locke, the voluntary decision to become a member of a state should not be irrevocable either. It has been shown that individuals do not know what their long-term interests are. Likewise, the constitutional indissolubility of a liberal state is not worth striving for, since this type of exercise of freedom suppresses any later exercise of the same type of freedom.<283>

(2) Sovereignty. If one assumes with current liberalism that the people have sovereignty, political rule must be derived from the voluntary acceptance of certain rules. Authoritarian relationships between rational and self-determined individuals are created by them and not natural phenomena. Political rule therefore depends on the consent of the governed. Sovereignty is not a collective good that can only be exercised jointly by all citizens of the state within eternally unchangeable borders. Rather, liberalism is an individualistic philosophy, so that sovereignty must be traceable back to the ethical right of individuals to determine their own political relationships. Therefore a territorially concentrated group is allowed to exercise its sovereignty in the form of secession.<284>

(3) majority principle. H. Beran first of all points out that the application of the majority principle is not always legitimate: there is a risk of "tyranny of the majority"<285>when, because of insurmountable differences, the minority does not have the prospect of becoming a majority. A possible reaction to the “tyranny of the majority” of the population of the entire state is secession, provided the minority has a suitable territory. In addition, with regard to the legitimacy of the application of the


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The majority principle to differentiate between two different types of decisions: Decisions on the question of whether several individuals want to constitute themselves as a group could not be made dependent on the majority principle in the same way as decisions on the question of which regulations an already constituted group should have. It follows from the arguments of freedom and sovereignty that separatists are allowed to hold a regionally limited referendum within the territory affected by the desired secession. Because if all citizens of a state could take part in the election, the separatists would regularly be overruled with the consequence that the unity of the state would no longer be based on their voluntary decision and the separatists would no longer have their sovereignty, i.e. the ethical right to determine their own political relationships. A further argument in favor of a regionally limited referendum arises - regardless of the principles of freedom and sovereignty - from the following consideration: only under certain conditions could all citizens of a state, even those who did not agree with the way the election was carried out to be obliged to accept the result of the vote. The prerequisites are (a) that it is a group that no one can leave, (b) that it is a decision that necessarily binds all members of the group, and (c) that the majority principle ensures a fair trial for represent the decision-making. To illustrate this, H. Beran outlines the following situation: Assume that a dangerous but curable infectious disease is spreading on an island. The procedure to deal with the disease was decided by a majority of the island's population. Even if a minority disagreed and boycotted the vote, in this case they were bound by the majority decision for ethical reasons. In conclusion, H. Beran states that this situation should seldom be the case in secession cases, if only because the first requirement (a) is not met.<286>

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H. Beran restricts the freedom of secession in three ways: secession must (1) be pursued by a territorially concentrated group and (2) ethically and (3) practical.

(1) Territorial Concentrated Group. In order to justify the territorial restriction of the freedom of secession, H. Beran first refers to the territorial component of secession, which he compares with the offense of emigration: the latter concerns the right to leave the state, the former, on the other hand, the right to the state, including a territory leave. For this reason, a justified secession presupposes a right of habitation. In addition to states and nations, this right of settlement could also be carried out by territorially concentrated communities. Since in a liberal theory all rights of the state are derived from citizens, this also applies to territorial integrity. Reasons to entrust the exercise of territorial rights exclusively and irrevocably to the people of the state as a whole are not apparent. As the smallest groups, territorially concentrated communities would have a right of settlement, since they needed their - lawfully acquired - territory for their right to assert themselves. They are defined as follows: "[...] a social group that has a common habitat, consists of numerous families (ie, is larger and more complex than a family), and is capable of self-perpetuation through time as a distinct entity. Its members have direct and many-sided relations to each other, have some common interests, have a sense of belonging to the group (which can coexist with a sense of belonging to other groups as well), and are conscious of themselves as a distinct group. "<287> Groups do not have to meet all the criteria in order to be recognized as a territorially concentrated community, insofar as it is less a matter of a distinct definition and more of a graduated concept. In addition, however, it is necessary for the territorially concentrated community to be able to survive as an independent political unit. In addition to the basic ability to govern oneself, this also includes a certain economic survivability - which affects the satisfaction of the


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Relate basic needs of members and exclude lifelong dependence on the support of other communities.<288>

(2) Ethical possibility. H. Beran gives two examples in which secessions are not allowed for ethical reasons: a secession is not justified if the secessionists of a subgroup prohibit secession, although it is ethically and practically possible, or if the secessionists are members of a subgroup who cannot seced, exploit or want to oppress.<289>

(3) Practical option. As an example of the restriction of the freedom of secession for practical reasons, H. Beran mentions secessions associated with territorial problems: Either the territory affected by the secession is not on the border of the state, or it is characterized by a particularly high proportion of resources or culturally, economically or respectively militarily of particular importance for the state. He points out, however, that these problems could be solved through resettlement, bilateral agreements, compensation payments and the like and therefore do not represent insurmountable hurdles for secessions.<290>

Ultimately, secession must be pursued with adequate political means.<291> That is the case if the election of the secession is made through a referendum which is in line with democratic principles.

While states are allowed to respond to internal as well as external attacks on their territorial integrity with violence, according to the doctrine of international law, the use of violence within the state to prevent secession is inadmissible within the framework of the liberal-democratic version of electoral theory.<292>


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4.2.2.1.2 Criticism