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Published online by Cambridge University Press: 06 March 2019
Using the crisis in Ukraine and the annexation of Crimea as a foil, the aim of this article is three-fold. First, it offers an internal critique of the influential answers that normative theory and international jurisprudence provide to the paradox of constitutionalism. Second, building on critical engagement with these approaches, this article mobilizes constitutional theory to find a constructive response to the crisis in Ukraine that goes beyond the prescriptions offered either by normative theory or international jurisprudence. In doing so, it seeks to sketch a broad constitutional framework not for post but rather for early-conflict constitution-making. The final aim of this article is to contribute to a richer self-understanding of constitutional theory vis-à-vis its disciplinary neighbors.
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There is indeed, to some extent, some circularity at play in the idea of self-determination and peoplehood, as several contributors to the present volume note in the context of international law and of constitutional theory, respectively: Self-determination presupposes the very self or people that is supposed to emerge from it; the constitution constitutes the people that constitutes it. But I am not sure that either logical or chronological priority is what ultimately matters here. Rather, the issue is ultimately a normative one: peoples rightfully exercising political self-determination. If what results from the mutually constituting interaction between self and determination (or between people and constitution) are institutions that track the interests of the people they are supposed to represent, then if there is any circularity, it is a virtuous rather than a vicious one. And the relevant self or people will speak up to break up the circle if it becomes vicious rather than virtuous: i.e., if it runs counter to, rather than serves, the rightful exercise of political self-determination.
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37 See Wheatley, Steven, Modelling Democratic Secession in International Law, in Nationalism and Globalisation: New Settings, New Challenges 32 (forthcoming 2015) (arguing the peoples of Crimea, Donetsk and Lugansk do not have a right to secede, not because those populations do not have a right to self-determination or must subject themselves to the authority of the Ukrainian State, but as a consequence of the failure of the authorities and the populations to engage in reasoned, democratic deliberations concerning the allocation of political authority in the region).Google Scholar
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58 I am convinced this would occur even if the shape of a territory were readjusted to include localities — historically important members of the nation, currently not a part of it.Google Scholar
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61 By federalization, I mean an institutional outcome of constitution-making that would result in the creation of one or more territorial autonomies within a state which would, in turn, be represented at the central level of decision-making. I hasten to add, however, that this process need not necessarily result in a federation. The exact content of such a federal-like solution would emerge through negotiations as parties negotiate (and trade-off) the territorial extent of the autonomy, its jurisdiction, and the powers and composition of the central organs of government.Google Scholar
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67 I mention this because some of the current approaches in comparative constitutionalism would object to such migration on contextualist grounds, arguing that each polity's constitutional order is a unique manifestation of its culture and history. Indeed, the Secession Reference itself suggests as much as it develops the meaning of the four unwritten principles from an interpretation of the relevant episodes in early Canadian constitutional history and relevant constitutional jurisprudence. While this objection legitimately demands caution in migrating and adapting constitutional ideas, it cannot be taken as credible in its strangest form, namely that a constitutional order is an expression of a particular people's values and ideals. If my critique of territorial rights discourse has been persuasive, it would also have undermined the insistence on the legitimacy of a putative territorial people. By uncovering constituent attachments as a suppressed ideal behind the vocabulary of the people, the migration of the Secession Reference is actually justified on normative grounds—as a way to respond to this ideal, implicit among all those who believe in the idea of popular sovereignty.Google Scholar
68 See Frankenberg, Gunter, Constitutional Transfer: The IKEA Theory Revisited, 8 Int'l J. Const. L. 563 (2008) (providing a critical account of the logic of decontextualization in the migration of constitutional ideas).Google Scholar
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72 See Oklopcic, Zoran, Anxieties of Consent: Theorizing Secession Between Constitutionalism and Self-Determination, 22 Int'l J. Minority & Group Rts. 259 (2015) (providing my further defense of this view, against the claims that “the duty to negotiate” requires secessionists to persuade other participants that the essence of their demand is legitimate).Google Scholar
73 Elecciones para cambiar la UE, El Pais, May 17, 2014 (stating that in the context of debates over the secession of Catalonia, for example, some have argued that its secession would provoke a “domino effect” in the rest of the “España invertebrada,” “spineless Spain”—a term invented by Ortega y Gasset—whose political unity has always been a precarious achievement).Google Scholar
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78 While the recent antipathy towards federalism in Ukraine is exacerbated by Russia's insistence on federalism as the appropriate constitutional framework for the resolution of the conflict, its roots are deeper. The Ukrainian elite's insistence on unitary statehood can in good part be explained by its assimilation of what it has considered to be “European” political and constitutional imaginary. The “return to Europe,” as a geopolitical orientation, has entailed as its complement the adoption of what is seen as the “European” (in effect, French) constitutional form of a “unitary state,” and the repudiation of its own Soviet, federalist, constitutional heritage. Kataryna Volczuk, Catching Up with “Europe”? Constitutional Debates on the Territorial-Administrative Model in Independent Ukraine, 12 Regional & Fed. Stud. 65 (2002). Equally, federalism was rejected by invoking the alleged purpose of American federalism whose purpose was to centralize, not devolve political power. Ukraine was already a unified state, so, consequently, federalism was unnecessary. Id. at 75.Google Scholar
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88 Improvement in the aggregate allegiances can also be discerned from some influential approaches to consociational democracy, however. The defense of “liberal consociationalism” in the Iraqi context, offered by John McGarry and Brendan O'Leary, insists on “ensur[ing] that the rights of individuals as well as groups are protected.” John McGarry & Brendan O'Leary, Iraq's Constitution of 2005: Liberal Consociation as Political Prescription, 5 Int'l J. Const. L. 670, 675-76 (2007). But the way in which liberal constitutionalism manifests itself institutionally, on the ground, is through the constitutionalized possibility of the territorial reconfiguration of Iraq's governorates, through referenda called triggered by popular initiative. The net result of such process would be the manifestation of the same ideal—improvement in the aggregate satisfaction of individual constituent attachments over the reconstituted territory—already offered in this article as a more compelling answer to the annexation objection.Google Scholar
89 Roth, supra note 38, at 128.Google Scholar
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