Secession very much remains an issue of great theoretical interest and, for better and worse, a topic of practical importance. Most persons in the United States, of course, properly concentrate on the attempted secession by eleven states in 1860-61 that led to the deaths of approximately 750,000 persons on both sides (whether it is accurate to describe these persons in any uncomplicated way as “Americans” is, of course, the central issue posed by the secessionist challenge). But one need only look to the northern neighbor of the United States to discover a country in which many people within Quebec, including the current provincial prime minister, continue to harbor secessionist aspirations and where the Canadian Supreme Court wrote an immensely interesting opinion about the constitutional status of a potential attempt to secede by Quebec. Scotland will also vote next year about undoing the 1707 Treaty of Union that generated the United Kingdom, even as Great Britain itself seems set to participate in a referendum on whether in effect to secede from the European Union. There are rumblings of secession in Catalonia, and the future of Belgium as a united country remains very much in doubt. And, of course, there were the manifold developments in what used to be the Soviet Union, Yugoslavia, and Czechoslovakia. One could look at other continents as well, including the recent creation of South Sudan out of what used to be simply Sudan or secessionist impulses in Iraq or, possibly, Syria (depending on the outcome of that country’s civil war).
No six-session reading course could possibly do justice to the plethora of issues raised by taking secession seriously as a topic of study. Nonetheless, we will try to look at a sampling of materials to at least help us get a fix on how one might approach the topic. We will begin by looking at some of the literature in political theory about the (im)propriety of secession, using the American Revolution and the Declaration of Independence as practical illustrations of two central position. One focuses on the ostensible right to self-determination and government by consent of the governed; the other suggests the necessity of legitimate claims by a geographically concentrated group, often of distinctive ethnicity, that it is being systematically oppressed by a central government. We will move on to look at the debate surrounding secession in the United States in 1860-61, including the important question whether that debate could/should be described primarily as “legal” or, instead, “political” or “moral.” (E.g., is the slaughter of the War better justified under the rubric of a “war on slavery” than “a war to save the Union”?) We will then move on to Canada and discuss the Quebec Secession case (and the specific claims by Quebec in behalf of withdrawal from Canada). The final three sessions will be devoted to a mixture of the international law involving secession—not surprisingly, existing states are extremely reluctant to adopt principles of international law that might encourage secessionist movements—and some of the concrete secessionist movements around the globe.
It should be clear that I would very much welcome the participation of any of the remarkable group of Harvard LLM or SJD students from abroad, as well, of course, as HLS 2- or 3-Ls. I might well choose readings for the end of the course based on the presence of students from a particular country facing one or another secessionist challenge. The reading for each meeting will probably run around 60-100 pages. There is, of course, no exam, and no writing will be required other than the preparation, during the course of the term, by each student of one “response paper” to the assigned readings for a given session. A major purpose of these papers is to set the agenda for the group discussion that will take place that week.
This reading group will meet September 9, September 23, October 7, October 21, November 4 and November 18.