1. Introduction
Professor Waters begins his intriguing book by announcing his proposal for a new right to secession: ‘Groups of people may form a new state by holding a referendum on part of an existing state's territory’ (p 1). He thus posits his argument in both provocative and almost simplistically convincing terms. In fact, announcing any ‘right’ to secession is provocative in itself, and framing this right in such simple terms appears particularly convincing: many would agree that ‘groups’ should be allowed to express their wishes through a referendum. Stating this ‘right’ in such straightforward terms, without mentioning the territorial integrity of states, sovereignty, uti possidetis or any other relevant norms, allows the reader to focus on the ‘right’ itself and not on any of its limitations. According to Professor Waters, secession – which for decades, if not centuries, had been viewed as a dangerous phenomenon as it undermines the territorial integrity of existing states – ought to be let out of its Pandora's box. In fact, as opposed to boxing secession in order to preserve the existing system, Professor Waters suggests that we rethink the latter in the light of all of its inadequacies, and that we embrace a right to secession according to an ambitious framework which he develops in this thought-provoking book.
This review will focus on some of the most innovative and provocative features of Professor Waters’ proposal before turning to an overall assessment of the book. In sum, Waters has written an excellent and innovative piece of scholarship, which adds significant value to existing debates on the ‘legality’ of secession.
2. New Definition of ‘People’
Under traditional legal scholarship on the right to self-determination a ‘people’ is a group which shares common objective characteristics, such as language, religion, ethnicity, culture and so on, as well as a common subjective belief that they are one and the same. Professor Waters acknowledges this traditional definition of peoplehood: ‘Objective tests describe observable, often fixed qualities, while subjective tests ask if the individuals feel they constitute a people’ (p 55). In a unique contribution to existing literature on self-determination and secession, Professor Waters proposes a new definition of a self-determining ‘people’: ‘The holders of the right are communities who define the territory on which they determine their own governance. A people is not the population of an existing state, nor the state itself; it is a self-defined, self-constituted community forming a majority in some part of an existing state – a part the community's members themselves define’ (p 125). Professor Waters thus suggests that a people need not share any common objective characteristics, as described above. Nor does a people, according to Professor Waters, need to share any subjective common beliefs, other than ‘the democratic expression of a population's preference’ (p 125), which in itself serves as the foundation for the group's claim to form its own state by exercising self-determination. By focusing on territory and whether a group constitutes a local majority, Professor Waters dispenses with the ‘Wilsonian’ version of peoplehood, which required an identification of the relevant unit – ‘people’. In addition, Professor Waters puts aside subsequent scholarly proposals for identifying a people based on objective and subjective characteristics and proposes a simple rule whereby a self-determination claim becomes available to all groups and communities by the simple virtue of their majority presence within a specific territory. ‘If enough people gather in one place, they can make a claim’ (p 126).
Professor Waters’ proposal is clever, as it convincingly removes from the self-determination debate the issue of whether particular groups constitute ‘peoples’, which had been a necessary ingredient of self-determination under the prior Wilsonian model. In fact, Waters announces that his new rule ‘is theoretically available to other coherent communities who constitute a local territorial majority – industrial or rural regions, island populations, “blue” or “red” states’ (p 126). Similarly, Waters manages, through his proposal, to dispense with the distinction between minorities and peoples, which had plagued the Wilsonian model of self-determination as the latter limited self-determination rights to peoples only while affording other, non-political rights to minorities. Waters, by focusing solely on whether a group constitutes a necessary majority within a specific territorial unit, manages to discard the minority versus people dichotomy and thereby eliminate the ‘problem’ of minorities.
3. Plebiscites and Cascading Plebiscites
Another innovative feature of Professor Waters’ proposal is his reliance on plebiscites as a mechanism for expressing a local group's democratic preference to secede from its existing mother state. ‘A community's right to define itself and its territory is the legal and moral heart of this new rule; the plebiscite is the engine’ (p 126). In fact, Waters draws a parallel between plebiscites for the purposes of secession under his proposal and democratic elections: both mechanisms allow voters to express their preference, without having to announce the underlying reasons for their vote. ‘What is being decided in the plebiscite is only sovereignty over some territory; the identity and motives of participants will matter tremendously to them, but are formally irrelevant’ (pp 126–27).
Professor Waters suggests that the seceding community ought to determine the plebiscitary territory, subject to a minimum population requirement, minimum contiguity of territory, and the prohibition of plebiscites across international borders. First, Waters explains that allowing the secessionist community to define its own plebiscitary territory is beneficial for two reasons: (i) it requires the group to define itself in relation to a specific territorial unit, and, moreover, (ii) it creates regulating and limiting incentives. In fact, a secessionist group that wants to win a secession plebiscite is incentivised, through Waters’ proposal, to delineate carefully its territorial unit and to include therein only regions where secessionist wishes prevail – so that the group can actually win the plebiscite. Moreover, Waters explains that his proposal requires a minimum population size for ‘prudential reasons’ (p 128). According to Waters, a minimum population size ‘helps legitimate secession by demonstrating its democratic qualities’, and a larger population size also suggests greater importance politically (p 128). Here, too, Waters analogises a requirement of his secession framework to a common one related to democratic elections: he suggests that requiring a minimum population size is like a threshold for winning seats in a legislature, the purpose of which is to prevent the influence of too small or fringe groups. Next, Waters explains that the reasons for requiring a specific territorial shape are pragmatic: requiring contiguity implies proximity, and ‘proximity makes community’ (p 158). Waters explains that although proximity can create conflict, it also creates ‘the need for human beings to relate to each other in and about their shared space’ (p 161). Because his proposal is based on territoriality, Waters convincingly argues that contiguity, or proximity, ought to be required when determining the shape of the secessionist territorial unit. Finally, Waters announces that plebiscites should never be held across international borders, in order to ‘discourage revanchism and foreign intervention by limiting pretexts for involving neighboring states’ (p 128).
In addition, Professor Waters proposes that the community that wishes to secede must win a supermajority of votes in the plebiscites; it must accept all residents of the territory as citizens, and must negotiate in good faith with the parent state. Waters also requires the seceding unit to undertake the respect of all relevant human rights provisions and accept ongoing international supervision. First, Waters argues that secession-determining plebiscites should ideally express the wishes of a supermajority of residents of the relevant unit (or those with serious ties to such a unit). Waters argues that a higher level creates greater legitimacy, as it ensures that a supermajority of the relevant population is in favour of secession, and as it reduces the number of people who would be forced to secede against their will. Second, Waters explains that a plebiscite cannot result in the exclusion of people who previously resided in the seceding territory, or of people with legitimate ties to such territory. Moreover, Waters stresses the importance of good-faith negotiations, portrayed as an obligation on parties, which ‘helps maintain the civility and legitimacy of the process’ (p 132).
In addition, Waters imposes a further obligation on parties, and in particular on the secessionist entity: that of respecting human rights. As Waters recognises, ‘[n]ew states are often required to undertake more and more extensive commitments than existing states’ (p 132). Finally, Waters suggests that plebiscites (and secessionist processes) be subject to international supervision, undertaken by a United Nations body on an ad hoc basis. Waters argues that secession is unlikely to succeed without support from the international community, as demonstrated by the examples of East Timor and Kosovo. According to Waters, the requirement of international supervision also implies consent by the existing state, which would have to agree to such supervision.
Finally, Waters allows for the possibility of so-called cascading plebiscites, whereby other communities from the seceding territory can form counterclaims not to secede, in a cascading plebiscite process. This may be one of the most intriguing aspects of Waters’ proposal. He suggests that groups opposed to secession could organise their own countervailing plebiscite, which would, if successful, allow their smaller area to remain in the existing state. Waters would limit such cascades to two or three rounds, after which negotiations would determine any subsequent border adjustments: ‘This would minimize the negative effects of border changes, producing a better fit between populations’ preferences and the new frontier’ (p 129). Waters discusses Kosovo as an area with potential for such a cascading plebiscite: Kosovar Albanians have expressed their desire to secede from Serbia, but the Serbian-dominated northern area of Kosovo could organise its own cascading plebiscite, whereby this area could express its preference to remain a part of Serbia. This, in turn, would lead to negotiations over a possible border adjustment: Kosovo could secede; northern Kosovo could remain a part of Serbia, and Albanian enclaves in the Serb-dominated north could be reattached to the independent state of Kosovo (p 182). According to Waters, secession is inherently territorial in nature, as groups of peoples live together in particularly delineated spaces; such proximity among peoples creates connections which, according to Waters, are the most fundamental link justifying a territorial group's desire to secede. This territorial aspect of self-determination explains why cascading plebiscites are, according to Waters, the best mechanism to allow groups to express their belonging preference.
4. No Fault Secession: Secession as a Right, Not a Remedy
Another intriguing feature of Waters’ book is his argument in favour of ‘no-fault secession’. Waters argues that his proposal ‘gives not value to ancient claims of privilege or patrimony’ (p 131). Instead, his proposal focuses on a current population's preference: ‘Under the new rule, claims based on past dominance, legal title, or historical injustice could not be raised as objections to an otherwise valid plebiscite’ (p 131). By arguing in favour of no-fault secession, Waters thus resolves one of the fundamental problems related to the traditional model of self-determination under which it was possible to reject ‘democratic realities’ by relying on historical claims (p 131). Instead, Waters focuses on present-day groups and allows such groups to express a current preference, despite history.
Perhaps most importantly, Waters posits secession as a right, not a remedy: ‘The new rule is a claim of right, not a response to human rights violations or systemic exclusion’ (p 130). Waters thus distinguishes his own framework from other scholarly works on secession, including those focused on remedial secession. According to Waters, remedial secession allows border changes only as a response to grave human rights violations, but does not provide for secession as a choice in circumstances where individuals simply do not wish to live in their existing state. ‘In this respect, remedial secession utterly fails to respond to the logic of democracy and self-determination: We do not value democracy solely to achieve material outcomes; we value autonomous decision-making in its own right’ (p 131). Thus, Waters argues convincingly that his rule, framing secession as a right and not a remedy, corresponds better to democratic principles of autonomy and choice.
5. Discussion and Assessment
Waters’ book is insightful and intriguing, as it convincingly presents the current state of affairs regarding secession as unsatisfactory, and as it suggests an ambitious new framework for secession. Waters describes the ‘failures’ of the present system throughout the first three chapters. He discusses the ‘decadence’ of self-determination, the limits of the so-called classical system, and demonstrates the flawed nature of most assumptions that underlie this system. In order to illustrate his arguments, Waters makes extensive use of boxes, which serve as examples – using both historical/past examples as well as more recent ones. Waters also convincingly weaves his argument, in favour of territorial-based secession, throughout the book, starting on the very first page, where he proposes a new right of secession in its ‘short version’: that groups of people, if they live in the same place, may form a new state by holding a referendum, and that such groups of people need not share any common characteristics. Waters’ narrative is also excellent in reassuring the reader that his argument does not necessarily advocate secession. As he explains, plebiscites in respect of which groups located in a specific territory are allowed to vote freely on whether they wish to secede from an existing state do not always lead towards secession; instead, such plebiscites may lead towards ‘better negotiations [with the existing state] about the reasons to stay’ (p 127). In sum, Waters’ book is an excellent contribution to existing literature on self-determination and secession.
Despite the book's overall excellence, a handful of minor criticisms can be noted. First, as mentioned above, Waters’ proposal specifies that secession plebiscites cannot take place across international borders. Waters justifies this part of his proposal as limiting pretexts for foreign intervention. While it is undoubtedly true that states could use the pretext of secession for invading parts of neighbouring states – as the Crimea example convincingly demonstrates – it is also true that some groups would prefer to exercise secession and form new states across existing international borders. In other words, as Waters himself recognises, many existing borders are random and unjust, and based on colonial boundaries. If secession is truly a right and not a remedy, as Waters argues, it is surprising that he so categorically rejects plebiscites across international borders. An excellent example here may be the Kurds, who are dispersed throughout Turkey, Iraq and Syria; if forming an independent state of Kurdistan is to be accomplished through the exercise of secession, via a plebiscite, then it is entirely possible to imagine that such a plebiscite could occur across the territory of the three existing states. Secession, if truly a right which transcends existing statehood, should not be halted at existing state boundaries.
Second, although Waters addresses the risk of violence implicit in most secession attempts and tries to minimise it, his book does not fully address or recognise this risk. Waters explains that plebiscites resulting from recent occupation, ethnic cleansing or serious violations of human rights should be rejected. He thus acknowledges partially the fact that violence may accompany some secession attempts. However, his book does not fully address the risk of war or violence; in fact, he assumes that plebiscites conducted in a democratic manner are the best vehicles for allowing groups to express their statehood preference. While peaceful secession discussions have taken place in Canada and in the United Kingdom, and while such peaceful secession discussions could certainly take place in the future in other parts of the world, it is also accurate to acknowledge that violence has accompanied other secession attempts and secessions. South Sudan fought a bloody independence war against Sudan for decades, before the independence of the former was ultimately accomplished through a referendum. Kosovar Albanians similarly engaged in conflict against Serbia before Kosovo declared independence in 2008. East Timor's independence was fought through conflict, and even Catalonia's secession attempt most recently was accompanied by violence. In sum, the potential for violence related to secession remains significant; while this is not an argument against the right of secession, the risk could have been acknowledged more extensively by Waters. Moreover, Waters could have attempted to develop violence mitigation suggestions as part of his proposal, which could have enhanced his already excellent proposal even further.
Third, while Waters’ proposal requires international supervision, he does not discuss the role that the international community, and in particular the very powerful states, play in any secession processes. In fact, it is virtually impossible for a secessionist group to achieve independence without the support and approval of the international community and, most often, of at least some powerful states. Other scholars have rightly acknowledged the role that Great Powers play in the international arena, including within secessionist wars. For example, East Timor was able to achieve independence from Indonesia only after the end of the Cold War, when western Great Powers ceased to support Indonesia, which until then had been viewed by such powers as an important ally against the USSR and communist Vietnam. South Sudan seceded from Sudan post-9/11, when the United States and its allies began to fear large, predominantly Muslim states such as Sudan. Kosovo was actively supported and aided by the United States, as Serbian leadership was more aligned with Russia. The Kurds, to the contrary, failed to garner the support of any powerful states and their independence plight remains unsuccessful. Several ‘frozen conflicts’ in the Caucasus remain unresolved, with secessionist groups blocked in their independence efforts, because of Russian involvement and opposition. In sum, the international community and its most powerful actors play the most important role within secession processes; Waters’ book does not engage in any discussion of such involvement by Great Powers. In fact, his proposal could have benefited from an explanation of how international actors affect secession, and how the development of a right of secession could alleviate or minimise the unnecessary role of international actors driven by their own geopolitical interests.
6. Conclusion
In conclusion, the minor concerns described above do not diminish the overall quality of Waters’ work. Boxing Pandora is an intriguing narrative of the existing and, according to Waters, unsatisfactory state of affairs regarding secession, as well as an ambitious proposal for reform of the existing system based on territoriality and the exercise of plebiscites. In sum Waters argues in favour of a right to secession exercised through plebiscites as a mechanism of democratic choice. While other scholars have written extensively on secession and have weighed in pro-remedial secession, Waters’ proposal is unique in its rejection of most existing definitions and concepts, such as peoplehood and secession as a remedy, and in the argument that a right to secession, including no-fault secession, does not necessarily threaten statehood. Allowing the right to secession to leave its Pandora's box, according to Waters’ framework, may lead towards more just results and may indeed reduce intrastate violence.
