Secession and post-sovereign constitution-making after 1989: Catalonia, Kosovo, and Quebec

Abstract

The year 1989 marked the return of the right to self-determination to center stage in constitutional politics. It was at the root of demands for constitutional democracy; it was also invoked by minority nations to make claims for secession and independent states. That year also marked the emergence of a new model of “post-sovereign” constitution-making that rejects the idea of a sovereign people who can act unilaterally with unlimited power. While this new model was developed in the context of transitions to constitutional democracy, before and after 1989, minority nations have relied on the unilateral declaration of independence as a foundational act of constitution-making, which is firmly rooted in the pre-1989 sovereign mindset. Drawing on the example of the Supreme Court of Canada’s judgment in the Quebec Secession Reference, I sketch how we might complete the legacy of 1989 by extending the project of post-sovereign constitution-making to secession.