II. The right to self-determination and the politics of norms contestation

It is worthwhile reconsidering a legal and political concept that, despite its ambiguities, has for decades been the formal vehicle for expressing the political will for independence. Despite contending interpretations of its conceptual content and political potential since its original inception after World War I (see Brownlie Reference Brownlie and Alexandrowicz1970; Pomerance Reference Pomerance1984), the right to self-determination was, during the era of decolonisation, unanimously recognised as the right to be free from colonial rule. However, once it became apparent that demands for self-determination were no longer limited to the colonial context, the question turned to the much more complex issue of ascertaining the scope and limits of the principle of self-determination in a postcolonial world (Christakis: 1999; Roepstorff Reference Roepstorff2012; Fabry Reference Fabry2015). As aptly expressed by French (2013: i):

Although the legal grammars of self-determination made space for a variety of political outcomes other than secession, the conditions by which a political community legally becomes a newly independent state remains its crucial test case. Weller (2008: ix), for instance, suggests that a self-determination conflict may be understood as any case ‘where a unit within an existing state is struggling, at least at some stage of its campaign, for independence’. Despite expectations, neither the increasingly ambitious legal and political instruments designed for the constitutional accommodation of difference, nor the careful building of an international regime for the protection of minority rights, have proven able to contend with the most critical expressions of self-determination across the world. Faced with this challenge, many governments initially responded with more or less violent political repression, while others attempted to respond to the challenge through a complex variety of power-sharing formulas. Interestingly, the pervasive efforts of many democratic states to accommodate this delicate terrain contrasts sharply with their failure to clarify the scope of the right to self-determination, at a moment when the recognition of political pluralism is widely understood to be one of the critical foundations of democratic legitimacy. Consequently, while the potential for autonomy and power sharing in the resolution of ethnic conflicts is widely accepted (Hannum Reference Hannum2011; Wolff and Rodt Reference Wolff and Rodt2013), the institutionalisation of a legal right to independent and territorially defined self-government for minorities at the international level remains elusive.

However, uncertainties surrounding the right to self-determination are not the exclusive result of the political measures adopted by existing states in their efforts to frustrate secessionist attempts. As soon as they try to realise their ultimate and most radical political claim, national minorities are also faced with the ambiguity that the right to self-determination unavoidably entails, as well as the complex and less than satisfactory articulation of the relationship between its ideal content and the conditions for its actual exercise.

As previously said, secession is only one of the many faces of the right to self-determination, but it is beyond dispute that the most controversial aspect is the question of whether there exists a right to secede under international law. Based on the traditional legal view, the answer is easy: international law neither allows nor prohibits secession. The creation of a new state through secession would be, legally speaking, a domestic matter, the consequences of which are regulated by international law. As Kohen (2006: 5) has pointed out:

Consequently, at first glance at least, international law would play an indirect role in secessionist disputes, and only insofar as a case impacts on other situations within the internal sphere of the state (e.g. human rights law or humanitarian issues) where international law is also applicable to domestic conflict (Abi-Saab Reference Abi-Saab and Kohen2006: 474). Cases involving affected territories with a particular international status, or that remain under colonial or another type of foreign rule, are the sole exception to this view (Cassese Reference Cassese1995; Crawford Reference Crawford2007).

From a political perspective, nonetheless, this understanding seems to elude the serious conflicts that arise from the tension between two fundamental principles of international law: the right to self-determination of peoples and respect for the territorial integrity of states. Indeed, as Abi-Saab (Reference Abi-Saab and Kohen2006) remarks, territorial integrity cannot be invoked properly as a legal argument to oppose secessionist movements, since they are not subjects of international law. Contrary to this simple picture, however, recent practice appears to be more complex. Far from its alleged neutrality, international law has played a direct role in providing – or not providing – a legal justification for the creation of new states in some prominent cases. As Kohen (2006: 7) notes:

Although Kohen aptly examines these apparent contradictions in legal terms, the contrasting cases of Montenegro, Kosovo, or South Sudan, amongst others, have reinforced an impression that, more than the legal arguments deployed by experts at the service of states and international organisations, the real basis for decision-making in these situations was political discretion and perceived national interest rather than respect for international law. Furthermore, contending sides tend to adopt different narratives, adapting their legal arguments respectively in the most convenient form for their political designs (Borgen Reference Borgen2009).

The classic doctrinal distinction between external self-determination, reserved for anti-colonial secessionist movements, and internal self-determination, understood as the right to democratic self-government within a state, is particularly telling of this trend (see Franck Reference Franck1992; Cassese Reference Cassese1995; Thornberry Reference Thornberry1991). According to Koskeniemmi (1994: 256), this doctrinal position, exemplified prominently by Franck (Reference Franck1992), and sharply criticised by Miller (Reference Miller2003), was deliberate in modifying the substance of the right to self-determination, attempting its reinterpretation as a right to democracy and minority protection rather than to secession (e.g. Barten Reference Barten2015). Despite its remarkable achievements, however, the current international regime for the protection of minorities confers rights upon persons who belong to national minorities but never to minorities as such. Furthermore, all of these international instruments, which have been particularly significant in the European context, reaffirm the principle of the territorial integrity of the affected states, as well as the inviolability of frontiers, and are extremely cautious regarding the issue of self-government (Pazartzis Reference Pazartzis, Weller and Metzger2006: 360). Generally speaking, although applied successfully in some cases, all these increasingly inclusive legal and political instruments are frequently unable to contend with the most critical demands for self-determination across the world, namely, those cases in which the affected groups unambiguously aspire to exercise a legitimate right to secede and claim full statehood. Moreover, in these cases, advocates of secession may also find support in a variety of arguments. For, in contrast to the crude realism demonstrated by central governments the world over when dealing with the issue of secession (e.g. Dahbour Reference Dahbour2003), the scholarly literature tends to adopt a rather possibilist approach, a sort of normative demarche, heuristically fruitful but not always consistent with the realities of world politics. These socio-legal normative approaches, frequently inspired by moral and political philosophy, attempt through different means, to identify the necessary conditions for a legitimate right to secede. The arguments deployed here are very diverse, including:

• • Remedial and restorative justice: systematic violation of human rights against a particular collective, or overly discriminatory distributions of revenue and resources among political groups, are frequently identified as legitimate moral reasons for political divorce (McCorquodale Reference McCorquodale1994; Buchanan Reference Buchanan1991; Tancredi Reference Tancredi and Kohen2006; Seymour Reference Seymour2007; Vidmar Reference Vidmar2010; Cuneen Reference Cuneen, Elmar, Weitekamp and Kerner2012).

• • Democratic imperative: rooted in the theory of political consent, another normative argument regards the imperative to respect the will to secede of a majority of a population associated with a particular political community within a defined territory, even if this entails a form of constitutional disobedience (cf. Heraclides Reference Heraclides1991; Binder Reference Binder1993; Beran Reference Beran and Lehning1998; Philpott Reference Philpott and Moore1998; Roach Reference Roach2007; Seshagiri Reference Seshagiri2010; Vilajosana Reference Vilajosana2014; Crameri Reference Crameri2015).

• • Deliberative democracy: this approach, based on the theory of deliberative democracy, suggests that insofar as secession is achieved through dialogue in a peaceful, consensual and free manner, legitimacy is assured (Valdez Reference Valdez2001; Courtois Reference Courtois2004; Jovanović Reference Jovanović, Pavković and Radan2008).

• • Procedural: this approach asserts that secession is only legitimate in so far as it follows the established legal procedure within a constitutional system, or if this implies a substantial reform of the constitution itself through constitutional means (Eisner Reference Eisner1992; Weinstock Reference Weinstock2000; Haljan Reference Haljan2014).

• • Therapeutic: adopting a psycho-social approach, advocates of the therapeutic jurisprudence movement focus on the way in which the exercise of self-determination can foster wider social well-being which facilitates self-expression and autonomy by human communities (Cooper Reference Cooper1999; Angeli Reference Angeli2015; Laoutides Reference Laoutides2015).

• • Functional: in an attempt to consider the impact of secession on the pre-existing state, this doctrinal approach views secession as legitimate so long as the political divorce will leave, even when conducted unilaterally, both the new state and the remaining state in a position to perform the requisite political and social functions in favour of their respective populations (Wellman Reference Wellman2005; Kreuter 2010).

While each argument is plausible, they all fail to recognise (as is evident in cases such as East Timor and Kosovo, South Ossetia and Abkhazia, and many more), that the political outcomes of secessionist demands depend less on their alleged legitimacy or legal certainty than on the particular domestic and international configuration of power surrounding each case (Sterio Reference Sterio2013; Abulof Reference Abulof2015). To overcome this problem, some authors suggest the need to establish both constitutional mechanisms and new international legal formulas that can determine authoritatively whether a particular group qualifies for the right to secede, as well as adequate procedures to achieve this end (e.g. Eisner Reference Eisner1992; Copp Reference Copp1998; Coleman Reference Coleman2010; Haljan Reference Haljan2014). Others, conversely, seek to determine the conditions for the legitimate use of force, either to facilitate or to impede any secession attempt (e.g. Roepstorff Reference Roepstorff2012). However, the realisation of the ambiguities and limits of the right to self-determination discussed above also explains the ostensible decline of its political appeal (Abulof Reference Abulof2016), and even its relative displacement by other notions, such as the ‘right to decide’, first proposed by Basque and Catalan nationalists in the past decade (cf. Beck Reference Beck2013; Gillespie Reference Gillespie2015). Understood by its proponents as the ultimate expression of the ‘democratic principle’ (e.g. Vilajosana Reference Vilajosana2014; Crameri Reference Crameri2015), others consider it a dangerous form of neo-decisionism, incompatible with both democratic constitutionalism (cf. De Miguel Reference De Miguel2006; Tajadura Reference Tajadura2013), and contemporary international law (cf. Lopez-Jacoiste Reference Lopez-Jacoiste and Hilpold2016; Pons Rafols 2015; Martín y Pérez de Nanclares Reference Martín y Pérez de Nanclares2015). However, it is interesting that the Spanish Constitutional Court rendered a rather ambivalent decision (Judgment 42/2014) that despite declaring unconstitutional any unilateral secessionist attempt, explicitly affirms the possibility of a constitutional interpretation of the so-called ‘right decide’ so long as its exercise is understood and implemented within the limits that the Spanish constitution clearly establishes, or within those resulting from its possible reform, well understood that this reform shall be conducted in due form (cf. Ridao i Martín Reference Ridao i Martín2014; Ferreres Comella Reference Ferreres Comella2014).

According to Koskenniemi, however, arguments about the law are ultimately political arguments (2006: 58–68). In the field of the right to self-determination, as in any other legal field, international legal discourse adopts contradictory lines of argumentation depending on its pattern of justification. The line of argumentation ‘descends’ when it starts with previous and superior normative concepts, such as the territorial integrity of the state or, alternatively, the right to self-determination of peoples.

On the other hand, it ‘ascends’ when it begins by noting the concrete actions or the will of particular actors; for instance, when central governments express their concerns regarding undesirable repercussions of any substantial constitutional change, or when advocates of secessionist movements invoke a real or perceived grievance or uncontainable popular will. Both lines of argumentation are always contradictory, and relevant actors may adopt different discursive strategies to resolve the contradiction. In some cases, these are ‘strategies of reconciliation’ based on the principle of negotiation, power sharing, or democratic dialogue and conducive to a deal. In other cases, ‘strategies of evasion’ are adopted which try to escape the contradiction, making it appear as if decisions are justified without having to take a stand on the relative superiority of a legal approach or one of pure fact (cf. Koskenniemi Reference Koskenniemi2006: 272). The consequences of this tension between conflicting legal arguments regarding the right to self-determination vary considerably depending on the case. But, at the end of the day – as can be seen in examples ranging from Quebec to Scotland, Somaliland to Bougainville, and others – a form of practical compromise between the preferred scenarios of contending sides, on the one hand, and the realistic and available choices on the other, takes shape. Unless the crudest and most violent expression of power politics is at play, this compromise rarely adopts the grammars of armed insurgency and political radicalism. For, it can be argued that, in the era of democratic constitutionalism, democratic ‘constituent power is not only a self-governing but also a self-limiting form of power’ that reflects a ‘process of converging legal democratic cultures across the world,’ but never prefabricated by an international body alien to the affected community (Chryssogonos and Stratilatis Reference Chryssogonos, Stratilatis, Filibi, Cornago and Frosini2012: 85). This should operate as a normative constriction by any contending side without impeding innovations in democratic constitutionalism, including the territorial transformation of the affected state (Tierney Reference Tierney, Loughlin and Walker2007). Otherwise, as Orakhelashvili, in this special issue, convincingly asserts in his examination of Kosovo’s unilateral declaration of independence:

Unfortunately, however, legal formulas never completely resolve these cases. The indeterminacy can only be resolved through political processes. Consequently, Koskenniemi (1991: 116) argues again that:

To sum up, rather than seeking decidability within the right to self-determination itself, the alternative would be to address the coexistence of political communities on the basis of entirely different terms; namely, those that highlight normative contestation, democratic deliberation and political negotiation, both within and amongst states, as the venue for political coexistence, thereby escaping any straightforward and one-sided (whether extensive or restrictive) understanding of the right to self-determination and its exercise. From this perspective, Fierke, in the Introduction to this special issue, contends that:

At this point, she aptly introduces Wiener’s (Reference Wiener2014) insightful distinction between contestation as a norm-generating social practice, on the one hand, and as a meta-organising principle of governance in the global realm, on the other (Wiener Reference Wiener2014: 1–12). Through this theoretical prism, there is an understanding that the norms, rules and principles of governance are invariably contested and that ‘regular contestation through critical discursive practices are indeed essential for them to work’ (Wiener Reference Wiener2014: 3). Accordingly, neither the principle of the territorial integrity of the state, nor the right to self-determination, shall be understood merely as structuring principles of international order or as an instrument to control actors’ behaviour. They form part of a changing ‘normative structure of meaning-in-use’, enacted through constant social practices of contestation by different actors, such as contestation of its formal validity and social recognition, or that of its validity at the implementation stage, with regard to culturally diverse constitutional contexts (Wiener Reference Wiener2014: 29–31). Moreover, ‘as social practices now frequently extend beyond national boundaries, experiences and expectations about fair and legitimate politics have become increasingly fragmented’ (Wiener Reference Wiener2008: ix). Contestation thus reveals a legitimacy gap but, at the same time, it is the very condition for enhancing legitimacy. The more one side tries to unilaterally assert the implementation of the corresponding norm, the more likely its contestation becomes. According to Wiener, ‘allocating this gap makes it possible to address the stage of norm compliance at the intermediary level where norm clashes become predictable’ (Wiener Reference Wiener2014: 81). It is thus here, she argues, where legitimacy needs to be constituted, and involved stakeholders should, therefore, regularly negotiate norms:

Just as it happens in other fields, contestation affecting the right to self-determination is observable in different sites, as anticipated by Wiener’s (2014: 3) theoretical model: national and international courts, regimes and international organisations, nationalist movements, and epistemic communities. Empirical research offers multiple indications of how this process of mutual accommodation through contestation operates as well as the practical complications it invariably entails. Kolliarakis (2015: 118) has summarised the case in point:

In fact, only a reformulation of the problem may allow escape from the above mentioned aporia. The proliferation of such a variety of attempts to conciliate the challenge of self-determination with due respect to constitutional frameworks and territorial integrity serves, after all, to demonstrate that the ultimate challenge is not about the creation of newly independent states. It is, instead, that of finding a path for a peaceful political coexistence, sometimes within and, at other times, amongst states. As cogently pointed out by McGarry (2008: 693–4):

Weller (Reference Weller2009), for instance, identifies different forms of political settlement by which dozens of self-determination disputes across the world have been framed. In these cases, self-determination was sometimes traded for autonomy or enhanced local self-government; regionalism, federalisation, or union, for confirmation of the territorial unit. They occasionally deferred a substantive settlement, while agreeing to a settlement mechanism. Other times, they balanced self-determination claims, agreeing on self-determination but deferring implementation; establishing a de facto state; supervised independence; conditional self-determination; or, finally, albeit less often, constitutional self-determination. Given such an impressive variety, Weller (2009: 153) concludes:

However, even formulated as such, the terrain continues to be highly contested, as is demonstrated by recent controversies regarding the possible implications for the constitutional future of the United Kingdom if they were to leave the EU, as aptly examined by Suteu in her contribution to this special issue, or the feasibility of some ad hoc arrangement which would secure the continuation of Scotland, Northern Ireland or Gibraltar in the EU after Brexit (cf. McEwen Reference McEwen2016; Minto et al. Reference Minto, Hunt, Keating and Gowan2016). There is no certainty that any of these possible settlements will definitively resolve such a dispute. However, long before the legal grammars of the right to self-determination were formulated, it was through the practice of diplomacy that peaceful coexistence of political communities was primarily achieved. And if so, why not unveil the hidden connection between the makings of diplomacy and the transformations of power-sharing and state sovereignty in the face of the challenge of political pluralism?

III. Constituent diplomacies and the co-production of sovereignty

The advent of modern diplomacy was not only crucial for the shaping of the modern state system, but also for the territorialisation of politics within states themselves (McMillan Reference McMillan, Larrínaga and Doucet2010). This occurred through the subsequent deployment of an ensemble of diplomatic, administrative and military dispositifs for what Foucault called governmentalité (2004). But the encapsulation of modern diplomacy in nation states was neither immediate nor straightforward. Quite the opposite, according to Von Thiessen (2010: 152):

Against the influential narratives that portray Renaissance diplomacy as a moment of humanistic pluralism (e.g. Mattingly Reference Mattingly1955), definitively displaced by a new diplomacy submitted to the rise of the nation state (e.g. Anderson Reference Anderson1993), a new stream in diplomatic history emphasises continuity rather than rupture in the emergence of modern diplomacy. For instance, with regard to the relationship between domestic political order and the diplomatic system, some new voices defend the opportunity of dissolving the artificial division between exterior and interior politics, and shifting from ‘viewing the foreign policy of a nation as demarcated from the domestic policy’, towards a more ‘holistic view of the closely connected nature of government’ (Adams and Cox Reference Adams, Cox, Adams and Cox2008: 8).

The notion of ‘composite kingdoms’ formulated by Koenigsberger (Reference Koenigsberger1978), and later developed by John H Elliot (Reference Elliot1992), convincingly described the British, Spanish and other European Empires as a cluster of political units all formally subject to one monarch but differentiated regarding their territorial jurisdiction, political institutions, and legal systems. Constitutional asymmetries between the territories created both opportunities for coexistence and rupture. But the ‘composite solution’, with its combination of vertical and horizontal arrangements, and the overlapping of both territorial and non-territorial jurisdictions, aptly characterises the prevailing mode of political organisation from the fifteenth to the nineteenth centuries. The negotiated or quasi-diplomatic character of some of these arrangements, such as that represented by the Union between Scotland and England in 1707, remains easily recognisable today in what has been called a post-sovereign European political landscape (Keating Reference Keating2009).

Despite strong opposition from the Turkish government to the idea of political autonomy for the Kurdish, the history of the Ottoman Empire equally reveals that the accommodation of political pluralism through diplomatic means was surely one of its main concerns. Diplomacy with foreign independent powers such as France or England was for centuries compatible with the diplomatic interventions of the tributary constituencies of the Ottoman Empire, such as those deployed by Ragusan, Transylvania and Wallachia, which within some limits enjoyed a significant degree of autonomy (Karman 2013: 183).

Similar developments were also common for centuries in the Chinese tributary system and they remain observable today in Chinese policy towards provincial autonomy and secessionism (see Wang in this special issue). The influence of Western powers during the nineteenth century forced the Chinese empire to adopt radical transformations in its diplomatic culture, but for half a century the dynasty tried to maintain a dual system in which the traditional tributary diplomatic practices of neighbouring countries such a Korea or Vietnam paralleled China’s adaptation to the patterns of Western diplomacy. More importantly, Chinese historical resistance to establishing direct diplomatic contacts with non-tributary foreign powers explains the important role that provincial governors and other local official played during that period of intensification of China’s diplomatic contacts with Western powers (Hexiu Reference Hexiu2008). That complex diplomatic network disappeared in 1912 when the late Qing dynasty fell and China became a republic, and remained absent from 1949 to 1978 during the early stages of the People’s Republic of China. Since then, in the context of its cautious transition to capitalism, Chinese authorities have encouraged a new era of international activism for the Chinese provinces, whilst simultaneously repressing secessionism.

These historical precedents reveal a forgotten connection between the makings of diplomacy, the transformations of sovereignty and the challenge of political pluralism that can also be examined through the conceptual prism of ‘diplomatic culture’. Based on previous insights by Bull (1977: 286–306), regarding what it is that constitutes the specificity of ‘diplomatic culture’, and seeking to explore in depth how it was formed and transformed over time, and its power of normalisation in a Leviathan-less world, Der Derian defined ‘diplomatic culture’ as the ‘mediation of estrangement by symbolic power and social constraints’ (Der Derian Reference Der Derian1987: 42). In his argument, the constitution of modern diplomatic culture only acquired its final profile at a specific historical moment, namely, in the context of the French Revolution and the subsequent reaction orchestrated against it by European monarchies. But, in contrast to those who find the balance of power the catalyst of that change, he argues:

The above paragraph is of particular importance with respect to the argument developed herein, given that it examines the rise of modern diplomacy, not within the logic of power politics, but as a result of the limitations faced by even the most powerful of states with regard to alienated powers that are beyond their control, whether by persuasion or force (see also Der Derian Reference Der Derian, Fawn and Larkins1996). In other words, modern diplomacy was forged as a way of responding to the functional and normative imperatives of political coexistence.

These developments were not exclusive to the European context. They were crucial throughout the world. Aiming to offer a nuanced illustration of it, this section will concentrate on the complex and enduring interplay between domestic pluralism and diplomatic order in the context of the rise and decline of Spanish rule in America. Although war and coercive conquest was the primary instrument of the colonisation process, diplomatic dealings also permeated early colonial encounters in America (Cardim et al. Reference Cardim, Herzog and Sabatini2012). Resistance to conquest produced frequent and violent upheavals among indigenous peoples against the conquerors. A number of severe defeats convinced the Spanish Crown of the need to combine coercion with dialogue, which became known as ‘peaceful conquest’. Although diplomatic dealings with indigenous peoples never displaced the most unbridled violence as the main tool of the Spanish conquest, one should not underestimate the role of diplomacy in facilitating an active role for the indigenous in the shaping of a hybrid colonial order (Matthew and Oudijk Reference Matthew and Oudijk2007). Historical research demonstrates that important cultural, legal and political dimensions were frequently negotiated, recognising some forms of autonomy for indigenous peoples (Cunill Reference Cunill2012). Moreover, Spain actively sought to establish channels of diplomatic communication with the representatives of native nations whenever the conquerors found it convenient and functional (Lacoste Reference Lacoste and Maira2010). These practices, initially conceived as a way of managing the contentious relationship between indigenous nations and the Spaniards, were, two centuries later, crucial in securing native support for Spanish efforts to hinder the advancement of English ambitions in the subcontinent. Diplomatic deals between indigenous peoples and revolutionaries also initially facilitated colonial emancipation and the consolidation of the new sovereign republics in the nineteenth century, even when the situation of native nations within the new republics only rarely improved (see Daniels and Kennedy Reference Daniels and Kennedy2002; Lacoste Reference Lacoste and Maira2010; Levaggi Reference Levaggi1993).

The new republics emerged from the internal jurisdictions that conformed to possessions. The Viceroyalty of Rio de la Plata was divided into four states: Argentina, Uruguay, Paraguay, and Bolivia. Brazil was born from the extinct Portuguese possessions, although not without experiencing territorial tensions, particularly in Rio Grande do Sul, which was an independent Republic from 1836 to 1845. The new emerging governments were, for some decades, involved in conflicting internal and external relations, not only within and among the new jurisdictions, but also with European colonial powers, as well as with native nations in those territories that remained under their control. In that context, an interesting and largely forgotten phenomenon took place from 1808 to 1816, between the deposition of the Spanish viceroyalty authorities and the full independence of the new American republics. Revolutionaries of Nueva Granada (a territory that today broadly corresponds to Venezuela, Colombia and Panama), rejected the idea of a ‘single and indivisible’ Republic and created a dozen sovereign and independent entities. Conscious of the dangers that threatened these entities, the revolutionaries sought a confederacy in order to push back foreign invaders and impede the rise of a new tyrant (cf. Gutiérrez Ardila Reference Gutiérrez Ardila2009: 4). The resulting horizontal negotiations among these provincial governments – such as Antioquia, Cundinamarca, Neiva or Tunja, among others – as well as their respective systems of mutual representation, albeit not fully diplomatic in ambition, were inspired by the same notion of ius gentium which, at that very moment in Europe, was in the process of being replaced by a new concept – ius inter gentes – tailored to measure the needs of European rising nation-states (Lechner Reference Lechner2006). In the words of Gutiérrez Ardila (Reference Gutiérrez Ardila2009: 4):

At the same time, similar developments were underway in the Viceroyalty of Rio de la Plata (the territories that now belong to Argentina, Chile, and Paraguay) in the context of their respective processes for independence. While some provinces – such as Cordoba, Mendoza, Salta and Tucuman – remained obedient to Buenos Aires, others, such as Santa Fe, Corrientes and Entre Ríos, in addition to other constituencies that now belong to Chile or Paraguay, reclaimed sovereignty and the right to create their own systems of diplomatic representation (Gutiérrez Ardila Reference Gutiérrez Ardila2007; Reference Gutiérrez Ardila2009). Furthermore, although with less intensity, such attempts to secure internal and external autonomy in the face of a new centralism were also registered in Concepción and Iquique, at the southern and northern extremes of Chile, respectively (Cartes-Montory Reference Cartes-Montory2010; Ovando and González Reference Ovando and González2014).

The history of modern Brazil after the demise of monarchy also confirms the mutual co-determination between the evolving forms of domestic political order and state participation in the wider international realm. Recent research reveals that during the Republica Velha, from 1890 to 1930, Brazilian constituent units were very active in international capital markets, becoming crucial in shaping the integration of the new Brazil into the nascent global economy. That era of sub-state activism, particularly salient in the fields of foreign trade and external borrowing, came to an end with the 1930 Revolution, ushering in a new era of centralisation which culminated in the Estado Novo dictatorship, from 1937 to 1945 (Maia and Saraiva Reference Maia and Flávio Sombra Saraiva2012). Democratisation processes, at the end of the century, enabled the recovery of these old practices, helping to forge one of the most distinctive elements of twenty-first century Brazilian federalism (e.g. Vigevani Reference Vigevani2006).

Rather than a true will of secession or separatism, these precedents, paradoxically, reveal quite the opposite: the importance of the assertion of political subjectivity and agency in the diplomatic field, as a precondition for the subsequent horizontal and fair negotiation of a new form of shared sovereignty under a new federation, namely, Argentina, Brazil, Colombia, or Mexico. Latin American republics were not immune to secessionist movements, as Yucatan’s repeated attempts to secede from Mexico reveal (e.g. Williams Reference Williams1929), but these ‘constituent diplomacies’ were telling expressions of the historical learning of political coexistence through a ‘strange multiplicity’ of institutional mediations, achieved through the endless combination of both diplomatic and constitutional deals, which remains recognisable in Latin America even today (cf. Tully Reference Tully1995).

Two centuries later, it is clear that these constituent diplomatic arrangements were unable to prevent a number of violent conflicts in Latin America. But these wars were more frequently rooted in bilateral geopolitical disputes or domestic ideological and social divides than in ethno-territorial forms of conflict. By and large, constituent diplomacies were, in some cases, quite successful in securing durable forms of coexistence among political communities at a short but critical transitional stage. These original, indigenous and constituent diplomacies generally operated a certain co-production of sovereignty.

These historical precedents, combined with the effects of the restructuring of the global political economy and the new democratic political effervescence that the region is experiencing today – after many decades of repression and political authoritarianism – reverberate in a new pluralisation of diplomacy that is rapidly taking form in Latin America. Indeed, genocide and the pervasive marginalisation of indigenous peoples in the new republics produced enormous pain and frustration among these populations which remain socially and politically meaningful today. But, paradoxically, the intense mobilisation of indigenous peoples and other collective ethno-territorial identities registered in recent decades in Ecuador, Bolivia or Colombia, as well as in other Latin American countries, seem to confirm the value of diplomacy once again. In his contribution to this special issue, for instance, Rueda contends that the degree of autonomy granted to indigenous peoples in Colombia, as well as expectations for its further improvement in coming years, have been shaped by a combination of legal and political mobilisation at both the domestic and international level. For, despite the many limitations in terms of resources and influence, indigenous peoples and other non-state political communities have found in diplomacy an important instrument to give a new and broader visibility to the existence of a huge transnational space which, after centuries of failed attempts, is now acquiring a new and promising political dynamism. In so doing, they seek to recover, in part, at least, their ancient political relevance (Beier Reference Beier2009).

The historical precedents discussed above may help us to critically engage, at any moment in time, with these transitional stages where the ultimate outcome of political efforts deployed by contending sides (some in favour and others against the coming of a new independent state – as often occurs with self-determination conflicts today) remains uncertain for a considerable period of time. Bearing this in mind, and after this brief historical interlude, the next section will examine the political potential of the ‘constituent diplomacies’ model for a critical but promising engagement with the challenge of political coexistence in an era in which state-making and state fragmentation are driven not only by cultural diversity and a differential sense of belonging, but also by the forces of transnational capitalism.

IV. State fragmentation and relational capacity

Beyond historical precedents, the possible value of diplomacy, as a way to constructively deal with contemporary political conflicts, related to diverse forms of domestic contestation regarding territorial integrity or national unity, has received considerable attention, albeit in a rather paradoxical way. In the literature on ‘second-track’ diplomacies, the connection has been established only to the extent that domestic dimensions acquired a critical manifestation in the form of intractable intercommunal or ethnic conflict, leading to political violence (cf. Davies and Kaufman Reference Davies and Kaufman2003; Jones Reference Jones2015). This inclination is even more salient for those studying topics of diplomatic recognition in cases such as those posed by the breakdown of Yugoslavia in its different stages (Caplan Reference Caplan2005; Dugard Reference Dugard2013). The same can be said for studies that focus on the precarious international status of the so-called ‘de facto’ states, ‘quasi-states’, or ‘states within states’, such as Transnistria, Abkhazia, South Ossetia, Nagorno-Karabakh, or Somaliland, amongst many others (cf. Bahcheli Reference Bahcheli, Bartmann and Srebrnik2004; Kingston and Spears Reference Kingston and Spears2004; Kolsto Reference Kolsto2006; Caspersen Reference Caspersen2012). Moreover, in all these approaches, domestic pluralism receives attention only to the extent that it is potentially – or has already been – conducive to secessionism, state partition, ‘Balkanisation’, ethnic cleansing, and ultimately war. Otherwise, implications for diplomacy of that pluralism remain largely ignored. Fawn and Richmond (2009: 207) have cogently pointed out, one of its most paradoxical consequences:

However, Fawn and Richmond concentrate on the most tragic expressions of the ethno-political conflict, which makes it difficult to extend their valuable critical insights to other, fortunately, less dramatic situations that are of equal relevance for a better understanding of the changing implications of pluralism for global order. The same can be said of Berg’s (2009) convincing insights on the paradoxes of the politics of recognition when confined within state boundaries. Some valuable attempts have been made, however, to clarify the diplomatic dimensions of problems of international recognition of such political entities. Based on the assumption that when a new state gains almost universal recognition it ceases to be a ‘de facto’ state, Berg and Toomla (Reference Berg and Toomla2009), for instance, identify a normalising pattern through which ‘de facto’ states pass from negation to a derivative form that they named ‘quasi-recognition’ (Berg and Toomla Reference Berg and Toomla2009: 44). Their insightful approach omits, nonetheless, three core elements of state recognition in contemporary international law: first, state recognition is no longer constitutive of the recognised state but simply declaratory; second, its formal validity never depends on the number of ‘real’ states willing to extend it; and third, the so-called diplomatic recognition, namely the formal establishment of diplomatic relations, is necessarily reciprocal and based on mutual consent (Talmon Reference Talmon1998; Grant Reference Grant1999). Furthermore, expectations of international consolidation do not depend on diplomatic recognition itself, as is historically evident in cases ranging from Israel, Taiwan, the Soviet Union, Czechoslovakia, Yugoslavia or Sudan (cf. Fazal Reference Fazal2007). In sum, the fiction of sovereignty deployed by ‘de facto’ states in their diplomatic adventures are not so distinct, at the end of the day, from the equally fictitious foundations of those other ‘real’, apparently more solid, states (cf. Constantinou Reference Constantinou1996: 103–10).

It is important to remember, however, that there are many other sources of collective political alienation beyond ethno-political conflict, which is usually ignored by the literature on ‘conflict resolution’ and ‘de facto’ states (e.g. Li Reference Li2002) Territorial impacts of the restructuring of the global political economy and connectivity, in combination with their effects on state capacity for governance, are also powerful driving forces behind transformations in sovereignty and state fragmentation. Picciotto (Reference Picciotto1997; Reference Picciotto, Dilling, Herberg and Winter2008) has convincingly analysed the domestic implications of the transition from ‘embedded’ liberalism to a new global ‘ordo-liberalism’ in which constitutional designs and global regulation are subordinated to market imperatives, and ‘law is being called upon to mediate shifts in the structures of power’ (Picciotto Reference Picciotto1997: 259). This restructuring, through a variety of transformations, is having a deep effect on the very role of the state in the regulation of global capitalism, forcing rapid adaptation to its changing functional and normative needs (Jayasuriya Reference Jayasuriya2005a: 53–4). The loss of control over diplomacy is particularly clear in the combination of experts, legal consultants, corporate managers, NGO activists, and celebrities that now populate the once highly selective field of international diplomacy. But, the manifestation of this process also has important implications for self-determination conflicts. As Stewart (2006: 20) has pointed out:

With regard to some African cases, Reno (2001: 198) has shown, for instance, how local elites in weak states can build new forms of ‘extra-territorial’ power through the manipulation of commercial connections, recruiting ‘foreign firms as allies in battles with local challengers.’ In the case of Asia, Ong (2006: 88–92) has examined the social and political implications of the so-called ‘growth triangles’, showing how these experiments with the market and sovereignty have produced social alienation and political turmoil. In his contribution to this special issue, Wang offers a compelling analysis of the way in which these transformations, in their combination of material and ideal elements, affect the contentious co-production of sovereignty between China and Tibet, Xinjiang, Hong Kong and Taiwan. In addition, these pressures are becoming increasingly influential in the case of domestic territorial constituencies in European and North American states. Even international rating agencies are beginning to recognise new forms of state-fragmentation through their new practice of differentiating varying sub-national foreign debt qualifications for international credit markets within the same states (Canuto and Liu Reference Canuto and Liu2013). In so doing, they rather unexpectedly show how state-fragmentation processes are sometimes propelled not by ethno-political dynamics but through the ubiquitous forces of global capitalism. The combined effects of global trade and investment through various technological means and liberalisation schemes, and the new regulatory framework for global competence have significantly affected local and regional economies all over the world, additionally eroding sub-state autonomy and enhancing interterritorial competences that cross state boundaries (Sadler Reference Sadler1992; Paul Reference Paul2005; Flint and Taylor Reference Flint and Taylor2007). As cogently examined by Moreno in this special issue, the radicalisation of Catalan nationalism, after decades of conforming to the Spanish model of constitutional autonomy, as performed within the European Union multilevel institutional frame, has been propelled by the severity of economic recession during recent years, and corresponding concerns about its possible social impact. These functional dynamics, combined with cultural differences, institutional restructuring, new technological facilities and transnational migration have, in short, all helped to propel stateless nations towards a new era of global activism. Some critical political economists were prompt to express their reservations regarding the ultimate implications of this process:

Less frequent are those studies devoted to examining the link between the restructuring of the global political economy, state-fragmentation, and diplomacy. Among the few exceptions, Pigman and Deos (2008: 85) have studied how ‘not widely recognised nation-states’ seek to assert their identity through gaining recognition by the global public, as well as by established governments, and how in their claim to recognition they have turned increasingly to private firms specialising in political communication and representation to conduct diplomacy on their behalf. But, it is perhaps a critical socio-legal scholar who has best captured the ultimate challenge that these transformations entail:

New global regulatory networks and multi-level governance schemes are transforming the role of nation states, giving form to what Jayasuriya (Reference Jayasuriya2005a; Reference Jayasuriya, Robertson and East2005b) calls the ‘rise of regulatory state’. This new global context for governance thus requires a new understanding of global governance, based less on the capacity of the state to govern through the extraction and allocation of resources, than on its ‘relational capacity’; that is, its ability to delineate and structure the set of relations that delimit particular and relevant fields of governance. As Jayasuriya (2004: 21) states:

In sum, new social forces and private interests are transforming traditional understandings of governance and sovereignty (Cannon and Jayarusiya Reference Cannon, Jayasuriya and Sprage2016: 296). Considered from this perspective, many contemporary self-determination conflicts can be found in unexpected places where, inadvertently, these forces operate.