Since all "peoples" have a right to self-determination under international
law, there has been a tendency to extend the definition of "people" on behalf
of groups that want to secede.
"People" in its best and most fundamental sense means the citizens or subjects
of a state. It is now generally understood (this was the principle of the
XIVth Amendment) that all the permanent residents of a state should be
included as part of its people.
The administrative sub-units of federal states or empires also have "peoples"
(e.g., the "people" of Virginia), but these peoples do not ordinarily have the
right to secede. The oppressed peoples of federal states or empires may
sometimes have a right to secede when they are denied certain fundamental
rights.
The people of Virginia would not have had the right to secede in 1861 under
current international law, because the federal government did not deny them
their fundamental rights. (On the contrary, Virginia seceded precisely in
order to perpetuate the oppression of an enslaved minority.)
By the same token, neither Hawaii nor Quebec has (or should have) a right to
secede now. Both enjoy self-determination within a Federal system.
Tim Sellers
>===== Original Message From Discussion list for con law professors
<[EMAIL PROTECTED]> =====
>Prof. Somin writes:
>
>> I think that this discussion of secession and self-rule raises more
>> questions than it answers:
>>
>> 1. How do we tell the difference between a "people" (which, if we agree
>> with Prof. Martin, has at least a presumptive right to self-rule), and a
>> mere collection of individuals without a distinct national identity (which
>> doesn't).
>
>Modern international law has narrowly defined "people" vis-a-vis their
>right to self-determination in the context of those groups of persons who
>have been dependent or subjected to alien subjugation, domination, and
>exploitation. The common example are colonies. See, e.g., UN Charter,
>First Additional Protocol to the Geneva Conventions (art. 1).
>
>Prof. Somin continue:
>>Are the Basques of Spain a "people", the Quebecois?
>
>Yes and Yes.
>
>Prof. Somin continues:
>>In the case
>> of the US, does this mean that states with ethnically distinctive
>> populations (e.g. - Hawaii) have greater rights to secede than those whose
>> populations are more similar to the national average (leaving aside the
>> possibility that the constitution is legally indissoluble)?
>
>I don't think that ethnically distinctive populations have any greater
>right to self-determination than, e.g., the American people -- who were
>British nationals -- in the thirteen colonies under international law.
>
>Prof. Somin continue:
>
>> 2. I'm not sure that it's so clear that states have no legal right to
>> secede under the COnstitution, even if the federal govt. violates it?
>> Several of the Founding Fathers, including Jefferson and Madison in the
>> Kentucky Resolution came close to endorsing a right of secession. So did
>> some of their Federalist political opponents who threatened to secede at
>> the 1814 Hartford Convention. Historian Kenneth Stampp argues that an
>> anti-secession interpretation of the Constitution was not even invented
>> until sometime in the 1830s or 40s.
>
>Comment: I am not so sure that Stampp is correct given the Kentucky
>Resolution. Madision, of course, would later reject the secession argument
>in his letter to Daniel Webster in 1833.
>
>Prof. Somin continues:
>>As a matter of strict logic, setting
>> history aside, Prof. Martin's approach seems to leave dissenting states no
>> recourse even in the face of very grave constitutional violations by the
>> federal government (True, they could use the political process, but if
>> they had sufficient political power to do that, it is unlikely that the
>> the feds would have overrode their preferences in the first place).
>
>Comment: This is not so clear to me. Two-thirds of the state legislatures
>could call for a constitutional convention, which Congress must then
>convene.
>
>Francisco Forrest Martin
