Rethinking Sovereignty. Independence-Lite, Devolution-Max and National Accommodation

RETHINKING SOVEREIGNTY. INDEPENDENCE-LITE, DEVOLUTION-MAX AND NATIONAL ACCOMMODATION Michael Keating Professor of Politics at the School of Social Sciences, University of Aberdeen SUMMARY: 1. Beyond Sovereignty. – 2. Self-Determination. – 3. Independence-Lite and Devolution-Max. – 4. The Scope of Devolution-Max. – 5. Problems. – References. – Abstract-Resum-Resumen. 1. Beyond Sovereignty Demands for national self-government have been among the most difficult issues to resolve in the practice of modern constitutionalism. They are not merely about the accommodation of different cultures, which might be managed in a variety of ways. Nor are they limited to territorial differentiated demands in public policy, to which the classical response is decentralization or federalism. National demands, rather, concern the nature and bounds of the political community and the locus of ultimate authority. It is not that nations, defined in some objective sense, have an inherent right to self-government: we know that nations are made and remade, that they are based on subjective and inter-subjective sentiment, they are sociological constructions, and they are often contested. Yet the very process of construction and the self-definition of the group as a nation in themselves entail they aspiration to be self-determination; this is the essential difference between nationalist and regionalist demands. For much of the twen- tieth century, political scientists assumed that the difference was Article received 24/04/12; approved 03/06/12. 9 REAF, núm. 16, octubre 2012, p. 9-29 Michael Keating rather that the national demand or claim to self-determination in- volved for a separate state. It is now recognized that statehood is only one possible outcome of the national claim and that there are many other constitutional formulas that can accommodate it (Keating, 2001a). The observation that national movements in the present are making claims for something other than statehood has also provoked a round of historical revisionism and a recognition that many nationality movements before the First World War were actually seeking forms of autonomy within imperial and international structures rather than statehood. This was the case with many of the nationalities of the Habsburg Empire, and even Sinn Féin was founded in 1906 pledged to a British dual monarchy on the lines of the Austro-Hun- garian Ausgleich of 1867. Statehood is particularly difficult in pluri- national states where nationality sentiments and claims overlap, so that it is impossible to agree on clear lines on the map. In fact a review of the demands made by nationalist movements in developed countries in recent years shows that a claim to immedi- ate statehood is the exception rather than the rule. Some parties, such as successive Breton regionalist movements, have always been more confederalist than separatist. Convergència i Unió in Catalonia has never come out for secession, although it has been careful not to rule it out as a future possibility. Flemish nationalists have been successively federalist and confederalist, with separatism only emerg- ing rather recently as a minority option. Even parties supporting independence tend to present it in a rather attenuated form. Esquerra Republicana de Catalunya is for independence, in the long term within a new Europe; in the meantime its proposals look more con- federal. The Basque Nationalist Party is for self-determination but divided between those who really believe in independence and more moderate element and has never officially been separatist. Plaid Cymru-Party of Wales has traditionally been closer to Home Rule than independence and, on those occasions when it has come out for independence, it has surrounded it with qualifications. The same is true in Quebec, where the Parti Québécois adopted the formula of sovereignty-assocation in the 1980s then, having officially abandoned it after the referendum of 1985, effectively returned to it with its 1995 proposals of sovereignty-partnership. The Scottish National Party has usually been the exception, pledged, at least since the 1940s, to independence but in the late 1980s has put this in a European context and, in recent proposals, has embraced what some have called ‘inde- 10 pendence-lite’, which involves keeping the pound sterling and various REAF, núm. 16, octubre 2012, p. 9-29 Rethinking Sovereignty regulatory agencies, and reaching common policies on a wide range of issues. While nationalist parties have backed away from classic independence, the parties of the state or their local branches have in some cases moved towards the idea of self-determination. Sections of the Spanish left have incorporated the idea, while in 1988 almost the entire Scottish Parliamentary Labour Party signed the Claim of Right asserting that sovereignty belonged to the Scottish people. Tensions within Belgian parties become so strong in the 1970s that they split into separate language wings, often adopting almost nationalist positions. The result of all this is the emergence of a plethora of proposals for constitutional change that reject both the idea of separate statehood and that of a unitary sovereign state. Some of these are what has come to be known in Scotland as ‘devolution-max’, stretching devolutionary or federal principles to the limit, while others represent ‘independence-lite’, secession while keeping much of the constitutional infrastructure of the existing state. At the limit, these merge into a constitutional middle ground, which defies conventional constitutional categories. The philosophical underpinning for all this is the idea of ‘post- sovereignty’ (McCormick, 1999; Keating, 2001a). Like other post- con- cepts, this does not suggest that sovereignty has disappeared, rather that it has been transformed and is no longer the dominant mode of political organization. There are several strands to the argument. The first concerns the idea of sovereignty as a normative legal prin- ciple. Traditional conceptions, originating in Bodin and later fortified by English constitutionalists like Blackstone and Dicey, see sovereignty as absolute and indivisible. States can therefore divide power through federal arrangements or decentralization, but cannot divide sovereignty. Post-sovereignty thinking holds that sovereignty refers, rather, to original authority not derived from a higher source, and that there can be multiple sources of it. So Basque nationalists hold that their historic rights, the fueros, are original law and not deriva- tive of the Spanish constitution of 1978. Scottish nationalists (and many non-nationalists as well) hold that Scotland did not surrender its entire sovereignty to a unitary and ominicompetent British parlia- ment in 1707. Quebeckers (both nationalists and federalists) will argue that Canada is properly seen as a compact of founding nations which did not abandon their claims to be the subjects of self-determination. Indeed it can be argued that in none of these cases has the 11 REAF, núm. 16, octubre 2012, p. 9-29 Michael Keating question of sovereignty been definitively and convincingly resolved. In each of them there are rival versions of rights, usually rooted in competing historiographies (Keating, 2001a). It is also argued, in the case of the European Union, that it itself constitutes a distinct sphere and source of law, no longer a mere delegatee of nation states (Mc- Cormick, 1999). The second element is to see sovereignty not as a ‘thing’ that a people has, but a relationship, which means that it always has to be negotiated with other sovereignty-holders and is usually embedded in wider transnational structures. This is not a new idea, but harks back to understandings of historic rights common in Europe before the rise of the integrated nation-state in the nineteenth century, and surviving in empires down to the First World War. It is also visible it traditions of covenants or pactism as constitutional practice in many places and in modern understandings of autonomy (Gagnon and Keat- ing, 2012). The third element is functional. Legal scholars will often insist that sovereignty is a normative legal concept and that it is not made redundant by the fact the sovereign entities may not actually have any power. Political scientists, on the other hand, would argue that, if sovereignty and power are completely dissociated, then the former becomes an empty concept of little use in constitution-making. The transformation of the state as a result of global economic change and interdependency, does therefore result in a reduction of sovereignty, albeit in a selective way, since some states retain more power than others. Small states can, paradoxically, best protect their remaining sovereignty and exercise real power through integration into larger transnational structures. The fourth element is institutional. Transnational structures, in- cluding international trading regimes, international law, international human rights regimes and, most obviously, the European Union, have eroded national sovereignty. While state elites will often claim that these are arrangements into which states enter of their own free will and from which they are free to withdraw, the argument becomes less convincing as the costs of withdrawal become clear. Such costs may be economic. They may also be political as the costs of defying international norms may be a loss of legitimacy or influence, a bigger problem for small democratic nations than for hegemonic or non- democratic states. The idea of post-sovereignty does not in itself resolve any of the 12 issues of national accommodation but it does shift the focus of argu- REAF, núm. 16, octubre 2012, p. 9-29 Rethinking Sovereignty ment. Nationality arguments in the United Kingdom, Spain and even Canada or Belgium, are not, as is sometimes assumed (Kymlicka, 2007), fundamentally about culture or different ways of life. Language issues are being managed, in a more, or less, conflictual way through public policy and variants of bilingualism. Social values in the component nations of these states are not diverging, but converging.

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