Secession and Territorial Jurisdiction

In this paper I offer an account of secession grounded on a conventionalist theory of territorial rights called Legitimacy Based Conventionalism (LBC). According to LBC, any group that upholds legitimate social norms has a right to independence. However, the group may enjoy exclusive territorial jurisdiction only to the extent that such power is needed to preserve the legitimacy of its social norms. Any more extensive exclusive titles on territory will have to be negotiated with existing overlapping institutions and interest groups. The outcome of the negotiations must take into consideration the important interests of all parties involved, and must aim at avoiding sharp reductions in their well-being. I proceed by first arguing that secession is first and foremost the assertion of exclusive territorial jurisdiction within a geographical area that is controlled by another institution. I examine existing territorial rights theories and argue that they do not properly address secession as a territorial phenomenon. Moreover, when applied to the issue of secession, they either deny a primary right to secede, or they fail to identify which group has a right to territorial independence. In the second half of the paper, I develop LBC and discuss its application to different levels of territorial independence: sub-national, national, and international. For LBC, groups whose practices insist on a specific territory acquire exclusive rights to that territory if and only if those practices are part of a system of legitimate social norms. Systems of social norms are legitimate if they protect basic human rights, some form of personal property, associative freedom, and if they sufficiently articulate the interests of all members of society with a special concern for the weakest members. LBC is able to address different levels of territorial independence, from local territorial autonomy, to the rejection of state institutions, and the withdrawal from international organizations. The norms that give rise to territorial jurisdiction may in fact be the social practices of a local sub-national group, or positive rules regulating administrative units within the borders of a state, as well as positive laws expressing national sovereignty and national self-determination. However, I argue that legitimate systems of social norms provide a justification for exclusive territorial jurisdiction only to the extent that the pursuit of secession preserves the basic requirements of legitimacy of the group's norms; this includes limited powers to regulate public spaces, access to natural resources, and to tax and regulate private property. More extensive rights, such as the right to impose heavy restrictions on immigration, or the right to exclude others from the enjoyment of natural resources must be attained – if at all – through a process of negotiation with other groups, nations, and organizations that have existing relevant interests in the same territory. The result is a theory of secession that is able to account for the central role of territorial independence in the protection of group's and nations' self-determination, but that also carves a substantial space for inter-group and international cooperation.