Experts convene to debate constitutional paradox of secession and the crisis in Ukraine

02 December 2014
Last week, experts on the Ukraine, central and Eastern Europe, and constitutional law came together to debate the ongoing political turmoil in Ukraine as part of a wider enquiry into the complex interactions between nation-states, independence movements, and constitutional principles in the region as a whole.
Dr Rivka Weill from the Radzyner School of Law, Israel, opened the event on 27 November with a lecture at the Faculty of Law entitled Holey Union: The Constitutional Paradox of Secession, in which she questioned the underlying motives behind the tactics employed by democratic states to regulate and undermine independence movements. 
She began her lecture by underlining the significance of secessionist movements in redrawing national boundaries and giving rise to new states, pointing out that three quarters of the member states to join the UN General Assembly since its inception were created as a result of successful claims for secession. 
Drawing on prominent recent examples, including the ongoing conflict threatening the territorial integrity of Ukraine, independence movements in Cataluña and the Basque region of Spain, and the referendum on Scotland’s place within the United Kingdom, Dr Weill identified two principal demands of secessionist movements: either to form an independent state, or to join a neighbouring state, as has occurred in the contested region of Crimea. She cited a number of historical precedents to contemporary territorial disputes, not least the role of secessionists in triggering both world wars, and the comparison drawn by former US Secretary of State Hillary Clinton between Russia’s annexation of Crimea and the annexing of Sudetenland by Germany in the 1930s.
Turning to the question of how independence movements threaten territorial and constitutional principles, she posed the question that she identified as the ‘elephant in the room’ in an ongoing debate: Can democracies legitimately allow for secession in their constitutions, or are the aims of such movements inherently inimical to constitutional norms?
Dr Weill showed that, despite the European Court of Human Rights’ ruling that political parties cannot be banned on the grounds of their secessionist agenda alone, democracies consistently regulate secession in indirect ways. By adopting practices such as barring independence parties from the political process for alleged racism or links to terrorist groups, or by insisting that the nation as a whole, rather than the region concerned, votes in independence referenda, she argued that “Democracies, no less than totalitarian regimes, protect their existence” against secessionists, not in order to uphold democratic principles, but to preserve the nation-state.
The lecture was followed on 29 November by a workshop entitled
The Break-Up of Nations: The Constitutional Dimensions Using Ukraine as a Case Study, at which experts from central and Eastern Europe discussed the situation in Ukraine in more depth, and proposed various principles for best practice in constitution-making and the indicators of a successful constitution. 
Participants included Andrew Wilson, Reader in Ukrainian Studies at University College London, and Volodymyr Venher, Lecturer at the National University of Kyiv-Mohyla in Ukraine and advisor to the Ukrainian government. The events were the first in the second phase of our programme in the Social and Political Foundations of Constitutions, which will apply academic research to practical issues of constitution-making and amending and the resolution of practical constitutional problems and conflicts.
Podcasts and policy briefs from the day will be available on the FLJS website over the coming weeks and months. To be notified when these resources become available and to receive invitations to future events, please follow us on Twitter or subscribe to our bimonthly e-newsletter.