Secession and Succession
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A notable prophet for a coming age of smallness was the diplomat and historian George Kennan, a steward of the American Century with an uncanny ability to see past the seemingly-frozen geopolitical arrangements of the day. Kennan always believed that Soviet power would “run its course,” as he predicted back in 1951. Shortly after the Soviet Union collapsed, he suggested that a similar fate might await the United States. America has become a “monster country,” afflicted by a swollen bureaucracy and “the hubris of inordinate size,” he wrote in his 1993 book, “Around the Cragged Hill: A Personal and Political Philosophy.” Things might work better, he suggested, if the nation was “decentralized into something like a dozen constituent republics, absorbing not only the powers of the existing states but a considerable part of those of the present federal establishment.”
The transfer of territory from one state to another creates numerous legal problems. These transfers, which may be thought of as a change in sovereignty or in international status, have occurred frequently in history, and their extent and consequences have often been drastic. Transfers of territory or change of sovereignty over territory, or change in international status, may come about in several ways. The attainment of independence by a territory or entity which was previously under the sovereignty, suzerainty, protectorate, mandate, trusteeship, or other form of legal control exercised by another state or states, or which was in a federal or other "real" union with other international entities.
The traditional view held that private law survives change in sovereignty, legal control, or international status, but that public law does not. This view, however, does not accord with state practice. An alternative approach, which seems closer to actual practice, is that if the laws of the new state and the predecessor state are consistent, succession takes place, but that if the laws are inconsistent, no succession occurs. In this view, succession is a presumption, which can be rebutted by positive legislation of the new state. Recent practice indicates that new states generally make legislative provision for continuity of the internal legal order, with the qualification that continuity must be consistent with the change in sovereignty.
Although the problem of state succession arises in other contexts, especially in connection with determining whether a successor state succeeds to rights and duties embodied in international agreements, it also arises with some frequency in the context of state responsibility. Particularly significant is the problem of the extent to which a successor state is bound by public debts and by other contractual obligations of the predecessor regime and responsible for international wrongs of that regime.
One dimension of the consequences of change of sovereignty is the extent to which sovereignty over territory is affected. If the legal identity of the territory is completely changed, as in the independence of a new state, the change is denominated "total" succession.
Actual state practice with regard to succession to treaties since World War I1 has been neither consistent nor coherent. None of the traditional doctrines satisfactorily explains contemporary approaches toward state succession. At least two policies, however, seem to be paramount. First, most new states (with the exception of Israel, the Philippines, South Korea, Upper Volta, and Algeria) have not applied the "clean slate" doctrine in all it. rigidity. They have sought to avoid the sudden, complete, and automatic discontinuity in treaty relations that would result from a total application of the doctrine.
Second, most new states have not expressly rejected the "clean slate" doctrine and have not adhered to any other general rule, such as one of "universal" succession. They have tended, on the other hand, to adopt techniques which would give them the freedom to pick and choose the treaty rights and obligations they wish to retain. Most of the older states have refrained from attempting to coerce newer states into acceptance of any general doctrine and have accepted this "pick and choose" method of treaty succession.
International law does not generally authorize or prohibit declarations of independence. International law does not regulate every human event, and an important measure of human liberty is the freedom of a people to conduct their own affairs. It is true that the international community is very cautious about secessionist attempts, especially when the situation is such that threats to international peace and security are manifest. Nevertheless, as a matter of law the international system neither authorizes nor condemns such attempts, but rather stands neutral. Secession, as such, therefore, is not contrary to international law.
One will search in vain for an explicit prohibition of unilateral secession in international instruments. The same is true for the explicit recognition of such a right. International law does not state conditions of legality of a secession, and neither does it provide for a general ‘right of secession’. It does not in general condemn movements aiming at the acquisition of independence, either.
The general principle of territorial integrity calls upon States to respect the territorial integrity of other States. But it does not regulate the internal conduct of groups within States, or preclude such internal groups from seceding or declaring independence. International law places no obligation of respect for territorial integrity upon individuals or groups within states. The provisions contained in the relevant international instruments bind states parties to them and not persons and peoples within states.
In the United States, state rights were not derived from the Constitution at all; on the contrary, all the rights, powers, or authorities of the Constitution were derived from the States. And all the rights not delegated to the Federal Government by the States, are reserved to the States themselves — the original fountains of all the powers of "the Constitution of the United States." This is the doctrine set forth by the "Federalist" in submitting that instrument or Constitution to the people.
No one denies that the States had a right to secede from the Union formed by the old Articles of Confederation. Indeed, this right was claimed and exercised by the States, when they withdrew from that Confederation in order to form "a more perfect Union." Yet, while that Union was standing and in favor with the people, the right of secession therefrom was vehemently denied.
It is conceded by Webster that if the Constitution was a compact to which the States are the parties, then the States have a right to secede from the Union at pleasure. Thus, says Webster, in stating the consequences of Calhoun's doctrine— " if a league between sovereign powers have no limitation as to the time of duration, and contain nothing making it perpetual, it subsists only during the good pleasure of the parties, although no violation be complained of. If, in the opinion of either party, it be violated, such party may say he will no longer fulfil its obligations on his part, but will consider the whole league or compact at an end, although it might be one of its stipulations that it should be perpetual."
Thus the great controversy is narrowed down to the single question — Is the Constitution a compact between the States? If so, then the right of secession is conceded, even by its most powerful and determined opponents; by the great jurist, as well as by "the great expounder" of the North. His utterances were listened to as oracles. If "the States acceded" to the Constitution, each acting for itself alone, then was it a voluntary association of States, from which, according to his own admission, any member might secede at pleasure.
It was in 1833, for the first time in the history of the country, that it was solemnly asserted and argued, that the Constitution of the United States was not a compact between the States. This new doctrine was simultaneously put forth, by Mr. Justice Story in his "Commentaries on the Constitution of the United States," and by Mr. Daniel Webster in "the greatest intellectual effort of his life," that is, in his great speech in the Senate of the 16th of February, 1833.
In his First Inaugural Address, March 4, 1861, Lincoln stated "I hold that, in contemplation of universal law, and of the Constitution, the union of these States is perpetual....It follows....that no State, upon its own mere motion, can lawfully get out of the Union; that resolves and ordinances to that effect are legally void; and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances. I, therefore, consider that, in view of the Constitution and the laws, the Union is unbroken.
"We find the proposition that, in legal contemplation, the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And, finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union.""
On the creation of new states, the Constitution is pretty clear. Article IV, Section 3, reads that “no new States shall be formed or erected within the Jurisdiction of any other State … without the Consent of the Legislatures of the States concerned as well as of the Congress.” It appears that someone forgot to tell West Virginia about this. In 1863, the Mountain State carved itself out of the northwestern corner of the Commonwealth of Virginia, raising the question: Is West Virginia unconstitutional?
While the Virginia government in Richmond seceded from the Union in the spring of 1861, up in the town of Wheeling, delegates from the northwestern part of the state got together to counter-secede. These delegates said the government in Richmond had no right to leave the Union, and as such they now constituted the state of Virginia. Thankfully, to keep things from getting too complicated, they agreed to call themselves New Virginia, or more fancifully, “The Restored Government of Virginia” (Kanawha was another name under consideration).
By 1862, through some questionable electoral processes, the “Restored Government of Virginia” had written up a new Constitution and applied for statehood. After a few edits—Lincoln insisted they insert a provision gradually abolishing slavery—West Virginia was granted statehood in 1863. The 10th state in the Union gave birth to the 35th.
The subjugation of the Southern States, and their acceptance of the terms dictated by the North, may be considered as having shifted the Federal Government from the basis of compact to that of conquest; and thereby extinguished every claim to the right of secession for the future.
George Kennan, the father of "containment" and the most influencial American ambassador since Benjamin Franklin, in his autobiography, "Around the Cragged Hill: A Personal and Political Philosophy," published in 1993: "I have often diverted myself, and puzzled my friends, by wondering how it would be if our country, while retaining certain of the rudiments of a federal government, were to be decentralized into something like a dozen constituent republics, absorbing not only the powers of the existing states but a considerable part of those of the present federal establishment. I could conceive of something like nine of these republics — let us say, New England; the Middle Atlantic states; the Middle West; the Northwest (from Wisconsin to the Northwest, and down the Pacific coast to central California); the Southwest (including Southern California and Hawaii); Texas (by itself); the Old South; Florida (perhaps including Puerto Rico); and Alaska; plus three great self-governing urban regions, those of New York, Chicago and Los Angeles — a total of twelve constituent entities. To these entities I would accord a larger part of the present federal powers than one might suspect — large enough, in fact, to make most people gasp."
Kennan proposed this scheme because "excessvie size in a country results unavoidably in a diminished sensitivity of its laws and regulations to the particular needs ... of individual localities and communities..." The resulting ""loss of intimacy between rlers and ruled ... [produces] ... the impression of remoteness and impersonality on the part of government and of insignificance and helplessness on the part of the indidivual, and thus impair[s] the very meaning of citizenship..."
Kennan believed that large countries suffer "the hubris of inordinate pride... a certain lack of modesty in the national self image... a vulnerability to dreams of power and glory to which the smaller state is less inclined..."
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