Monday, July 25, 2016

TEXit: A Nation-State Hypothetical
By David Gallup
What if the citizens of the state of Texas decide to leave the United States?
What if they have a referendum on whether to exit the Union, to once again become an independent Republic of Texas?
Forty-nine other states could easily maintain the Union, along with England as a quasi 50th state, or the District of Columbia finally taking up the mantle. Would Texas's departure be a boon to the citizens of Texas? Would it imperil the US Union?
Texas has enough human, oil, and land resources that it could go it alone. There would be many countries who would be delighted to work with an independent Texas and would quickly form treaty relationships.
What would this mean for the people living in Texas?
They would then need a Texas Passport and potentially a visa to travel to neighboring New Mexico, Oklahoma, Arkansas or Louisiana. To work in the remaining 49 states, Texans would need to apply for a work authorization. Restrictions on the movement of personal property and import/export taxes would begin to burden them. Families would be separated by borders that for almost two centuries were only lines on a map. Now Texas would have to build a wall and post Texasland Security Officers every few miles to prevent "illegal" immigration.
Could Texas depart legally?
The United States Constitution requires that "No State shall enter into any Treaty, Alliance or Confederation..." (Article I, Section 10, Clause 1). One of the main considerations about whether a state is sovereign is its ability to establish treaties and relationships with other countries. Because the majority of powers of the government are vested in the Federal government (Congress, President and Courts), states are prevented from contracting with "foreign" governments.
Article IV of the US Constitution establishes admission into the United States by a new state with consent of the Congress, but does not deal with state secession. The remainder of the Constitution is silent on secession, neither denying nor confirming a right to secede.
In the US Supreme Court, the right of secession was rejected in Texas v. White in 1869. Chief Justice Chase considered the United States an inseparable union (a federation rather than a confederation). He wrote, "The Union was solemnly declared to be perpetual...The Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly...When Texas became one of the United States, [it] entered into an indissoluble relation...More than a compact, it was the incorporation of a new member into the political body. And it was final."
Subsequent case law has upheld the precedent of this landmark case. Justice Chase concluded that there was no place for reconsideration "except through revolution, or through the consent of the States." Chase admitted that that the people of a state still retained the power to revolt. Although unlikely, the people could also peacefully approach the governments of the other states in the union or the federal government to request a legal withdrawal from the union. Neither of these options can be considered a legal right to secede -- as revolution is outside of the law and consent is a political decision of the remaining states.
Under national law, Texas cannot legally secede.
Under international law, however, Texans could potentially claim a right to secede. Article 1 of the International Covenant on Civil and Political Rights, which the US has ratified, states, "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." International law doctrine has affirmed secession as a basis for achieving the right to self-determination in cases of colonialism, subjugation, exploitation or lack of meaningful exercise of self-determination internally within a country.
Could Texas depart illegally?
Would this be considered an insurrection? Would the federal government exert its armed forces to stop Texas? Could this lead to another civil war?
Texans mounting an armed insurrection would undoubtedly be met by swift action by the FBI, the US Army and other federal government forces.
Texans could make a peaceful declaration of independence and find other governments to back them up. Countries such as Kosovo, Abkhazia, South Ossetia and Crimea, formerly part of other nation-states, have all declared their independence in the last few years. They found backing by Russia or by rulings of the United Nations' International Court of Justice.
TEXit versus Brexit?
The difference between Texas trying to leave the US Union and Great Britain choosing to leave the European Union is that the EU was created by a treaty signed by its members, a treaty that, in Article 50, allows for "member-states" to withdraw. Because US states, such as Texas, are prohibited from independently entering into relations with nation-states, they lack one of the main qualifications under international law to be considered sovereign. The Montevideo Convention on the Rights and Duties of States affirms that an independent sovereign state is one that can enter into "foreign relations" as well as has a permanent population, a defined territory and a functioning government.
Furthermore, the EU has no constitution to bind the European states together into a new indissoluble entity, meaning that it is a confederation of sovereign states (an international organization), rather than a united political body.
On a social level, a small majority of British currently maintain a stronger feeling of belonging to their island country than to a feeling of "being European." This feeling of "being British" will not prevent Northern Ireland from reuniting with Ireland, or Scotland and Wales declaring their independence from England.
Only slightly more than 50% of the British voted to leave the European Union. And if the vote were taken again in a few years, it is quite likely that a vote to return to the Union would occur. At this point, Britain knows that the USA will come to its aid if it were threatened by war; so one of the main reasons for establishing the EU -- to prevent another war in Western Europe -- did not sway British voters.
Britain's exit from Europe and a hypothetical Texas exiting from the United States of America raise many concerns about identity and citizenship that the murky waters of nationalism obfuscate.
Will Great Britain's departure from the European Union precipitate the EU's demise?
What does this mean for European Citizenship? For the rights to travel, live and work freely throughout the region?
What does Britain's exit mean for the processes of nationalism and cosmopolitanism?
What is the purpose of a federation? Is it only to prevent war among its members? Or is it more than that? Can a federation provide a sense of belonging, a larger identity?
What does having a higher level allegiance beyond the state mean for identity and human interaction?
Even if Texas were to leave the Union, just as Britain has "left" the EU, it cannot leave earth. World Citizenship, the union of humans as humans, shall not perish from the earth.
Thank you to Raman Maroz, Associate General Counsel and legal intern in World Service Authority's Legal Department, for conducting legal research for this TEXit blog.