ovde - vera znanje mir

Secession,” unpublished paper. For a discussion of the idea of a constitutional right to secede, see
Allen Buchanan, Secession, pp. 127-49.
[Footnote]
28. I am indebted to Harry Brighouse for his suggestion that the sort of ideal theory which would
have to be assumed by Primary Right Theorists in order to escape my objections is so extreme as
to be practically irrelevant.
——————————————————————————–
Reproduced with permission of the copyright owner. Further reproduction or distribution is
prohibited without permission.
SECESSION: CAN IT BE A LEGAL ACT?
Sunday, January 27th, 2008
Text by Peter Radan
(BA,LLB, PhD (Syd), Dip Ed (SCAE), Senior Lecturer, Division of Law, Macquarie University)
In what Allen Buchanan described as an ‘age of secession’, the post-Cold War period has
witnessed a plethora of learned writings about secession. However, relatively few of them have
focused on the issue whether an act of secession can be legal. It is the aim of this chapter to
address that very question from the perspective of a State’s domestic constitutional law.
The right of secession pursuant to the domestic constitutional law of a State is one that has rarely
arisen in case law. When it has, it has been in the context of federal States where a sub-unit of
such a State has sought to secede. Accordingly the analysis below is confined to the context of
secession from federal States.
Few State constitutions, past or present, have had, or have, express provisions dealing with
secession. Past illustrations include the constitutions of the former Soviet Union, Burma and
Yugoslavia. Present illustrations include St Kitts & Nevis and Ethiopia. In the case of St Kitts &
Nevis, an attempt by Nevis to secede in 1998 failed to meet the necessary constitutional
requirements.
In analysing domestic constitutional law and the right of secession the cases of the cases of the
United States of America, the former Yugoslavia and Canada shall be exlored. In each case the
relevant State’s supreme judicial body has given a ruling or rulings examining the right of
secession pursuant to that State’s constitutional law.
The United States
Professor Cass Sunstein has summed up the question of secession of an American state from the
United States by asserting that:
… no serious scholar or politician now argues that a right to secede exists under American
constitutional law.
Sunstein’s assertion is based upon the American Supreme Court decision of Texas v White. This
case was decided in the wake of the Civil War, and concerned the sale by the Confederate state
government of Texas of a number of United States bonds that had been in the Texas state treasury
at the time Texas seceded from the United States in February 1861. Following the end of the war,
the new reconstruction government of Texas sued for the recovery of the bonds on the basis that
the sale by the Confederate state government was invalid. The Supreme Court, in a majority
decision, upheld the claim.
Speaking for the majority of the Supreme Court, Chase CJ ruled in favour of Texas on the ground
that the Confederate state government in Texas had no legal existence because the secession of
Texas from the United States was illegal. As the Confederate state government was illegal, its act
of selling the bonds was also illegal and of no effect. Thus, Texas was entitled to the recovery of
the bonds. The critical finding underpinning the ruling that Texas could not secede from the
United States was that, following its admission to the United States in 1845, Texas became part of