Reflections on Applying Internal

Boundary Alteration Principles to

Separatist Movements

Eric

12/18/2014

1

Introduction

The American relationship with independence is a confusing one. As arguably the most

prominent of any historical revolution of independence,1 one might think the nation would be

quick to support any movements which seek to allow a people to withdraw from their political

overseers and recognize its own political identity and secure its liberties from its overseers.

However, while we often see support for these movements abroad, we readily ridicule and

suppress such ideas and movements internally.2,3,4, 5

Of course, as much as America views itself as the cheerleader of democratic revolutions

overseas, there is an understandable motivation for us to view such internal movements with

skepticism in order to best preserve our existence. That right to ignore the preference of other

polities when it comes to our own internal affairs is one of the backbones upon which

international law, both customary and formal, is structured.6 However, simply having the default

position of non-interference, does not totally wipe out the responsibilities to protect minorities

from oppressive regimes, or to ensure they have a voice.7

That is of course easier to postulate than act upon. There is wide variation in form for

what governments and cultures consider a validating “voice”. By Western standards, the

referendum is probably the most directly applicable and widely recognized. Even so, most of the

legislative functions of the West are performed in representative bodies. The focus of this article

1 See the American Revolutionary War (Translated to the British as the American War of Independence)

2 See the United States Civil War

3 Cascadia: http://cascadianow.org/cascadian-independence/

4 Texas: So there is like 300 of these movements, I’ve chosen to list none of them.

5 Second Vermont Republic: http://vermontrepublic.org/

6 Milena Sterio, The Kosovar Declaration of Independence: "Botching the Balkans" or Respecting International

Law?, 37 Ga. J. Int'l & Comp. L. 267, 275-76 (2009). 7 Id.

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is to theorize about expression of identity, self-determination, and separation from a group within

a nation.

So what are some methods of separation that we have seen gain legitimacy? To what

extent, even after these legitimate methods are utilized, does the mother-nation extend over its

newly-independent offspring? As with many issues in international law, much of the question is

based around geo-political alliances. There is, for instance, no foreseeable end to Moscow’s

continued attempts to assert itself as a counter to American interests in Europe and Asia, much as

it did under Soviet rule. However, we can look to the ideas of what a particular nation deems

“fair” when it is dealing with purely internal border issues. That is, which methods seem

appropriate under the rule of law for a nation’s desire to reorder the provinces or states from

within?

Since the intersection of non-interference and secession lie within the lacunae of

acceptability on the international stage, examination of such internal subnational border updates

of constitutionality at least provides observers with an idea of whether a state is being consistent

with its own beliefs. Such a methodology may not be capable of overriding the concept of

internal integrity or uti possidetis on whole; however, at least it provides would-be separatists

with some level of due process from which to build their movements. It also offers the potential

for nearly any central government to “plan” for potential separations in a way more favorable to

its positions, thus adding a degree of stability and security at a constitutional level.

This work will survey several nations and their prominent court cases and relevant

constitutional standards when they seek to redraw their internal, subnational boundaries.

Contained within in the cases and constitutional texts are each nation’s idea of due process and

requirements for providing their peoples with proper notification and hearing when it pertains to

3

government actions on their lives. This will provide us with a platform consistent with such ideas

of self-determination and accountability from the government to the people that is frequently

invoked by secessionist movements. What is interesting is that most of these cases deal with

people who do not want to separate from their nations, but instead wish not to have their

identities unilaterally reoriented by the stroke of bureaucracy. Once this overview is complete,

this article will seek to find comparisons to the internal boundary due process requirements to

secessions with the hopes of finding a methodology that the international community can apply

in the event of a serious secessionist movement within a particular nation. First, though, we

should look to see if the due process afforded to citizens of a nation is actually proper, or if

internal boundary redrawing is a matter of mere administrative duties.

Whatever the method used, the result can have tremendous influence on the new political

landscape, especially when one considers the scarcity of access to natural resources like energy

reserves and fresh water, voting tendencies of the population, and divisive ethnic issues. With

such high stakes, allocating the control over boundary redrawing can be of critical importance to

maintaining political control and so the comparative approaches on how nations deal with the

issue is one that needs to be studied carefully. Critical understanding of the issue must begin with

the affinity issues when it comes to personal identification and feeling as though one is a part of

what both the historical integrity and kinship groups. This sort of interpersonal dialogue research

is certainly far beyond the scope of this essay, but helps to underscore that when one deals with

provincial boundary reformations, let alone secessionist movements, is more than just a political

or legal topic and has critical importance on the individual lives of citizens as well.8

8 For a general overview how strong affinity bonds can impact populations see, Manfred Zuleeg, What Holds a

Nation Together? Cohesion and Democracy in the United States of America and in the European Union. 45 Am. J. Comp. L. 505.

4

In the United States, even “serious” calls to restructure state borders are viewed as

something anomalous and are generally valued more for their novelty to draw attention to a

personality than serious attempts to fix problems (although often such foundations can be

transformed into a more substantive debate).9

As a matter of affinity, the people of southern Utah have very real concerns about the

ability of northern Utah to empathize with them. Northern Utah, along the Wasatch River

accounts for 75% of the population, so it is not unthinkable that real concerns of proper

representation and voice would arise in that state.10

Despite that, however, these are viewed

primarily as matters for the political process to overcome. After all, the population of Utah is

relatively homogenous with 80% of the population reporting as white and the only other

“significant” racial heritage were the 13% of the population which belonged to those reporting a

Hispanic or Latino descent.11

Proper representation is of critical importance to any form due

process. Popular opinion of the topic of secession in the United States sits between 20-22%,

depending on the political conditions within in the nation.12,13

Meaning that 80% view it as

something approaching heresy, or at the very least, laughable. Notwithstanding the flippancy of

views of separatist movements in the United States, when we look across the Atlantic at

Germany or South Africa we can see that when provincial boundaries need to be changed, some

entity (whether national, state/provincial or the People themselves) will make decisive efforts to

9 For instance, Tim Draper’s recent plan to break California into six states:

http://www.usatoday.com/story/news/nation-now/2014/02/21/california-six-states-plan-tim-draper/5673283/ 10

United States Census 2010. http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=DEC_10_PL_GCTPL2.ST05 11

2010 U.S. Census, Utah (2010). 12

http://middleburyinstitute.org/zogbysecessionpoll2008.html 13

http://www.dailymail.co.uk/news/article-2762874/One-four-Americans-says-support-seceding-U-S-A-wake-failed-Scottish-vote-independence.html

5

reform their boundaries to meet political or other needs. Of course, it is not as though secession

rests upon a vacuum of ethnic enclaves.

Access to natural resources is just as major a problem which has to be accounted for and

managed (hopefully) wisely and through drastic measures when necessary. Traditionally, these

issues have been prone to civil wars. “The isolation of intra-national conflicts within national

borders increased the destructiveness of civil wars, but made them at the same time somewhat

organized and predictable.”14

But it does not need to be outright civil war. The tensions around

resources (as well as ethnic strife and human suffering) can introduce different kinds of conflicts:

[C]ivil wars are gradually replaced by new forms of violence that are fragmented

and decentralized in nature. Such violence can be used by small groups, often

terrorist ones, to pursue specific political goals. Even more often, this

“microviolence” is used by organized gangs and warlords to obtain material gains

and political power.15

So then if a state’s natural resource limitations intersect with issues surrounding boundary

redrawing, then there exists a potential for the sort of “microviolence” mentioned above. But,

that is at the far extreme and there is little reason for a rational analysis to conclude that the most

catastrophic outcome will be the inevitable one.

Of course there may be an intersection of resource rights and ethnic groups. The fear,

generally, being that access to natural resources can be used to strengthen one group over

another, or conversely, isolate one group. So what then should be ethnic minorities’ interests in

autonomous, or quasi-autonomous, governance within a state.16

There are a myriad of

international laws concerning the rights of ethnic groups, and the main advantage, from the

14

Raimo Vayrynen, Environment, Violence, and Political Change, 15 Notre Dame J.L. Ethics & Pub. Pol'y 593, 594 (2001). 15

Id. at 595. 16

For an interesting, albeit brief, read on the fusion of natural resources and ethnic rights (and also public health) see generally: Anietie Maureen-Ann Akpan, Tierra Y Vida: How Environmental Injustice Has Adversely Impacted the Public Health of Rural Brown Populations in South Texas, 43 Tex. Envtl. L.J. 321 (2013).

6

perspective of the minority anyway, of handling such issues internally instead of through an

international body is that “[] when autonomy is put in place by free will of the local State (there

being no external legal constraints in play), the regime is ordinarily hammered out for the benefit

of a minority the rights of which are protected by international law.”17

Therefore it may be better

to accord sovereignty within a nation than to risk having an ethnic minority seek to establish the

law using international law as justification or, as we have recently seen in the Ukrainian-Russian

situation, risk having a world power assert rights on behalf of that ethnic minority that

undermines your nation’s own sovereignty.

The scope of this essay is pretty limited in both scope and scale. Mostly it is concerned

with the how, of due procedures generally, not the substantive issues of why. We look first to

constitutional cases of federalist Germany and unitary South Africa that explore and contrast the

methodology and reasoning expected and its applications. However, before moving on to the text

of the constitutions and case law, here is just a little more background on our two models.

In Germany, while the more recent concerns about the boundaries of Länder swivel

around economic concerns, which this essay touches on only briefly, the first major case was the

Southwest State case. That case receives further treatment below. In the Southwest State case, the

issue was really a matter of Länder sovereignty and autonomy. Once the Reunification of

Germany began, there was a lot of concern around the historical and cultural status of the

Länder. In more recent times, the primary issues are more about the balance of financial support

for social programs between the various Länder than concerns about identity.18

Since the

reunification of Germany, the poorer (generally former East German) Länder have had to rely on

the wealthier (generally West German) Länder via a system of complex tax distribution

17

Yoram Dinstein, “Autonomy Regimes and International Law”, 56 Vill. L. Rev. 437, 439 (2011). 18

Id.

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transfers.19

More recently, there has been a concern from Länder, as a part of the most

prosperous nation in the European Union, that the Länder should have more input into the realm

of Germany’s approach to international law, before decisions come out of Berlin.20

These

factors, in combination with the political identities of historically-rich Länder would make it of

interest in this conversation, but because of length constraints are left unaddressed here.21

Because those are evolving problems, we will focus on an older case that features both economic

and ethnic concerns in Germany, the Petition for a Frankish State case.

In South Africa we discuss the attempt of the legislature to unilaterally transfer the

administration of the City of Matatiele from the KwaZula-Natal Province to neighboring Eastern

Cape Province via constitutional amendment. The purpose behind the reorganization was due to

the odd procedure of cross-provincial administration that arose from the growth of Matatiele and

other cities that had subsequently proven to be quite burdensome.22

Matatiele was just one of the

areas where the elimination of cross-provincial administration was to occur, but according to the

Constitutional Court its timing was inexplicable and unfortunate – passed only eight months

before elections were to be held – which caused a great deal of political discord.23

Of course,

South Africa is a unitary government, not federalist as the United States and Germany. However,

as we will see the South African Constitutional Court upholds the right of the local populace to

have democratic input as stakeholders in their political territoriality. This occurs over two cases

on the same amendment which are referred to as Matatiele I and Matatiele II.

As we will see in all four of these cases, the high courts have strong sympathies towards

the interests of local stakeholders, but not at the total expense of the national governments’

19

Id. at 1284 20

See generally, Magdalena Suszycka-Jasch and Hans-Christian Jasch. 10 German L.J. 1215 (2009). 21

Dealing with these directly are the articles by Gunlicks, supra. 22

Matatiele and Others v. President of South Africa and Others (CCT 73/05) [2005] at 16. 23

Id. at 17.

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interests to an efficient and manageable system of organization. Unsurprisingly, all four also

draw heavily on their respective constitutional texts to determine whether the appropriate

mechanisms and methods were used in the reformations. Also not surprising is the range of

operations that constitutions dictate. While some are decidedly more populist in approach, most

maintain the rights of states, or of the people, to drive the change (Brazil) while others simply

dictate that it is the right of the government to alter boundaries as necessary (China). First, we

turn to the plain text of several nations’ constitutions to get a better feel for the landscape on

which we are working.

Constitutional Textual Requirements

Even given the influence of the United States Constitution from the time of its framing

through the middle part of the 20th Century, the textual similarities in major federalist nations is

remarkable.24

The verbiage is nearly unchanged from nation to nation. Below is a brief sample of

the requirements as phrased in the various national constitutions, starting with the United States:

“New states may be admitted by the Congress into this union; but no new states

shall be formed or erected within the jurisdiction of any other state; nor any state

be formed by the junction of two or more states, or parts of states, without the

consent of the legislatures of the states concerned as well as of the Congress.”25

And from Argentina:

“New Provinces may be admitted into the Nation; but a Province cannot be

established in the territory of another or several, nor several combine into one,

24

Acknowledging that the influence of the United States Constitution is now waning in popularity, with younger nations now relying more on the positive-rights formulations similar to the German Basic Law and South Africa’s Constitution. 25

US Const. Art. IV, § 3

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without the consent of the legislatures of the interested Provinces and of

Congress.”26

And from Australia:

“A new State may be formed by separation of territory from a State, but only with

the consent of the Parliament thereof, and a new State may be formed by the

union of two or more States or parts of States, but only with the consent of the

Parliaments of the States affected.”27

Even Germany’s Basic Law, while diverging somewhat as far more explicit in various

requirements, and broken into a total of eight sections (discussed in greater detail below) has a

similar concern with the inclusion of its Länder (but requiring also a popular vote) in the

reformation process, “Revisions of the existing division into Länder shall be effected by a

federal law, which must be confirmed by referendum. The affected Länder shall be afforded an

opportunity to be heard.”28

The above nations all have a federalist form of government; however, such characteristics

are not without variation. In fact, India’s Constitution grants Parliament wide discretion in the

formation of new states by statute to, “form a new State by separation of territory from any State

or by uniting two or more States or parts of States or by uniting any territory to a part of any

State[.]”29

India’s parliament is required to give notice of the change to the “[l]egislature of that

State for expressing its views thereon within such period as may be specified in the reference or

within such further period as the President may allow and the period so specified or allowed has

expired.”

26

Const. of Argentina, Art. 13. 27

Australian Constitution, Chap. VI § 124 “Formation of new States”. 28

German Basic Law, Art. 29(2) 29

India Const. (1950), Art. 2-3.

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Whether a nation has federalist or unitary governments, both are nevertheless concerned

with providing an appropriate level of due process. The South African Constitution requires bills

from Parliament which alter borders of provinces to be passed by two-thirds majority in both the

National Assembly and requires a six out-of-nine-province vote to confirm in the National

Council of Provinces.30

Similarly, Italy’s Constitution grants its provinces and regions a voice in

their boundaries, “[c]hanges in provincial boundaries and the institution of new Provinces within

a Region are regulated by the laws of the Republic, [and]... Municipalities, after consultation

with the Region.”31

Somewhat unsurprisingly, when carefully considered, not all unitary states are quite as

open to provincial input when it comes to the authority of redrawn regions. Many do not require

any constitutional notice, let alone provincial-level suffrage on proposed reformation. Perhaps

least surprising is China’s provision which dictates that its State Council exercise broad

authority:

To approve the geographic division of provinces, autonomous regions and

municipalities directly under the Central Government, and to approve the

establishment and geographic division of autonomous prefectures, counties,

autonomous counties and cities[.]32

Not dissimilar to China is Chile’s text, “The creation... of regions, provinces and

communes; the modification of their boundaries, as well as the establishment of the capitals of

the regions and provinces, will be matters of constitutional organic law.”

As with any practical application of constitutional law, we are best informed by actual

holdings of courts, not the mere text. Without properly reviewing the application of such laws,

30

The Const. of S. Africa § 74(3). 31

The Const. of Italy Art. 133 32

The Const. of China Art. 89, § 15.

11

we cannot truly know the true import of the constitutional law and how judicial review has

treated the phenomena against real-life scenarios.

Application to Real Cases

Germany33,34

The first and most important boundary-redrawing case in Germany is the famous

Southwest States case, more famous for its analysis on the status of Länder borders, is the case’s

stature as the German Marbury v. Madison.35

The Federal Constitutional Court, in Southwest

declared its duty to review legislative actions in accordance with the Basic Law. However,

though the case is heard shortly after the adoption of the Basic Law, the background to the case

starts before its 1952 adoption by West Germany.

In 1946, as the West German government was still forming, the three Länder of Baden,

Württemberg-Baden, and Württemberg-Hohenzollern, formed their own governments and began

operating.36

Once the West German government was in place, the federal legislature set about

reorganizing the three under two laws. The first legislation was passed, after their own deadlines

had failed, as an extension of time for the three to organize and solidify their position as a länd.

The second statute was to merge them into Baden-Wurttemberg, due to their ineffectiveness

because of disarray and disorganization.37,38

Once the legislation had been passed, Baden set

33

Cases retrieved from http://www.servat.unibe.ch/dfr, and translated by Google. 34

See Appendix A, Figure 4 for a map of modern Germany for reference. 35

Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd

ed. (Durham, NC: Duke University Press, 1997), 66-67. 36

Gerhard Leibholz, “The German Federal Constitutional Court and the Southwest Case,” American Political Science Review 46 (1953), 725. 37

Id. 38

Richard Davis and D. Jeffrey Burnham, “The Role of the Federal Judiciary in the Development of Federalism in West Germany and the United States,” Boston College Int’l and Comp. L. Rev. (1989) 63, 72.

12

about suing to retain their status as individual federal states. The FCC eventually held that the

first law was unconstitutional because it was an issue that the three states were capable of

handling on their own. Therefore, the central government was disallowed from interfering in the

group’s behavior until it was demonstrated to have arrived at an impasse.39

[The FCC] also held that the reorganization laws were in part constitutional. The

difference, in summary, between the constitutional and unconstitutional laws lay

in the extent of infringement upon the rights of the Lander. Where the laws were

necessary to aid the Lander, the laws were constitutional. Where the provisions

forced the Lander to implement federal procedures, an excessive delegation of

powers occurred[.]40

The Second Reorganization Statute would be a more complex and provide a different outcome.

As mentioned above, Article 29 of the Basic Law lays out the requirements in for the basic

consideration of new, or changed, Länder borders, “Due regard shall be given in this connection

to regional, historical and cultural ties, economic efficiency, and the requirements of local and

regional planning.” <<TEASE OUT MORE HERE>> The Article gives more specific and

technical requirements in Sections (2)-(8), which require, inter alia, federal legislation be passed,

a referendum held, and that “[t]he affected Länder shall be afforded an opportunity to be

heard.”41

(More details on some of these other sections will emerge in the Frankish States case

below.)

Further complicating the issue was that Article 118 of the Basic Law explicitly provided

for reorganization by federal legislation, if these specific Lander could not resolve the issue

39

Id. at 72. 40

Id. 41

German Basic Law, Art. 29 § 2.

13

themselves.42

The FCC ruled that the referenda that had been held were questionable and

borderline insufficient because the they were held in four districts, North Baden, South Baden,

North Württemberg, and South Württemberg, unfortunately there were two sets of questions that

while similar in nature were not the same because one set of questions was inconsistent with the

second.43

Further aggravating the issue is that while the referendum passed in three of the

districts, the fourth (South Baden) rejected the proposal and instead opted for a restoration of the

historical provinces at a 62% rate. Ultimately, and despite those shortcomings, the FCC ruled

that the Second Reorganization Act was a valid execution of law by the central government and

that the court established itself in many important ways because:

There can be no doubt that the judgment of the Court had a pacifying influence on

the political life of all States involved in the controversy, and that it cleared the

political atmosphere considerably. Beyond that, it had a politically unifying effect

which proved beneficial to the new German State as a whole.44

The next German case, Petition for a Frankish State, also deals with the referendum requirement

and again illustrates that even a valid attempt at a lawfully-called plebiscite does not necessarily

hamstring central government decisions if it is for a constitutionally important purpose such as

the Southwest States case was.45

The Frankish State case started in 1993, when a referendum application was submitted

with an ultimate goal to divide “Upper, Middle and Lower Franconia of Bavaria, the Main-

Tauber-Kreis of Baden-Württemberg and the former circles Meiningen, Hildburghausen,

42

German Basic Law, Art. 118 (“The division of the territory comprising Baden, Württemberg-Baden and Württemberg-Hohenzollern into Länder may be revised, without regard to the provisions of Article 29, by agreement between the Länder concerned. If no agreement is reached, the revision shall be effected by a federal law, which shall provide for an advisory referendum.”) 43 Southwest State Case, 1 BVerf GE 14 (1951) at para 103. 44

Leibholz at 731. 45

Id at 728.

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Sonneberg and Neuhaus am Rennweg the Free State of Thuringia.”46,47

The petitioners had

followed the process outlined in Article 29 of the Basic law that allows “... by referendum,

‘coherent, deferred settlement and economic space’ the One [Länd] Belonging to bring about,

‘the parts of which are situated in different countries and at least one million inhabitants.’”48

The

next year, the group received a notice rejecting their application for a referendum from the

Minister of the Interior because while it met the procedural requirements, its proposal lacked

substantive qualification on the areas for inclusion to the new Frankish state.49

According to the rejection, the petitioners’ argument that the new population would be

sufficiently Frankish to qualify under the cultural and historical justifications was invalid

because it considered combining the three areas in order to muster those relationships into a

condensed territory was not acceptable.50

The FCC disagreed and said that it was not the duty of

the Minister of the Interior to assess or criticize the cultural and historic ties in regards to how

many parts of other Länder were to be assimilated, but only “only check whether parts of the

territory are not arbitrarily designated as belonging together.”51

However, the court eventually

rejects the movement’s other arguments and sides with the Minister of the Interior in ultimately

deciding against their case, largely on the lack of economic cohesiveness that would be involved

and that would harm Bavaria even in the event that it would help the would-be Frankish state. 52

Demonstrating, like in Southwest States, that while popular input is an important consideration

for the FCC whenever boundaries are reformed, such a process may not proceed without the

blessing of the central government or the input of other Länder.

46

See 47

BVerfGE 96, 139 (1997), para. 1 (Retrieved from http://www.servat.unibe.ch/dfr/bv096139.html#) 48

Id. at para 2. 49

Id. at para 25. 50

Id. at para 27. 51

Id. at para 31. 52

Id. at para 51-55.

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Before moving on to a review of South Africa, there a couple of more recent federalism

problems that either have involved or may come to involve redrawing borders that are worth

glancing at. In these modern issues in Germany, the Länder tried to effect significant socio-

economic balancing through border changes. A formal study of the impact was first

commissioned in 1973 and that commission found that the number of Länder should be reduced.

Two decades later a proposal to consolidate Berlin and Brandenburg failed due to a lack of

popular support.53

Also, of a more recent concern to the German Länder s, is their voice that can

help protect their sovereignty from laws passed in the European Union. As Prof. Arthur B.

Gunlicks estimated, “But in spite of these and other arguments for boundary reforms, action has

not been taken, and, as Prime Minister Vogel predicted, it is indeed far more difficult today to

talk about consolidation.”54

South Africa55

The Matatiele cases, are South African Constitutional Court cases. In 2005, the national

government of South Africa moved the town of Matatiele from KwaZulu-Natale to the

neighboring province of Eastern Cape through the Local Government Demarcation Act of 1988

mentioned above to eliminate the difficult-to-administer, cross-provincial sprawl that followed

the city’s growth.56

In Matatiele I, the Court resolves the constitutionality of the Parliament to

alter municipality boundaries, if it is a part of a larger provincial boundary movement, while

ordering further hearings on the issue of whether public hearings were sufficient to satisfy due

53

Gunlicks, supra at 1287. 54

Id. at 1288. 55

For reference, see the provincial map in Appendix A, Figure 5. 56

Matatiele, I at 18.

16

process of the local stakeholders. In Matatiele II, the Court settles that issue and makes its

complete holding over constitutionality of the reorganization.

The move was a somewhat complex reorganization involving two provinces and several

smaller political entities that came at the suggestion of the Minister of Provincial and Local

Government.57

After public input was received they moved the proposal over to the Municipal

Demarcation Board. The official Board proposed changes to the plan and passed it back over the

Minister, which was the start of a ricochet of events between the Minister and Board,

disagreements that eventually fell through and the South African Parliament put forward an

amendment to their constitution which accomplished the move.58

This interjection into local issues by Parliament, apart from what was viewed as more

properly the role of the Minister, sat poorly with the local stakeholders who claimed it was in

direct violation of the existing constitutional process. The complaint coming from the City of

Matatiele and other local interests was brought to the Constitutional Court.59

The

counterargument from the government was that the 12th Amendment was done according to the

proper constitutional requirements and that as such the reorganization had “become part of the

Constitution and cannot therefore be challenged on the ground that it is inconsistent with the

other parts of the Constitution.”60

Before the Court could rule on the legitimacy of the reorganization, it first had to decide

whether Parliament had the power to pass an amendment that would alter the constitutionally-

ordered independent authority of the Board which was specifically vested with the responsibility

57

Id. 58

Id at 25. 59

Id at 30-31. 60

Id at 32.

17

to “establish criteria and procedures for the determination of municipal boundaries.”61

The Court

recognized that “[t]he independence of the Board is crucial to our constitutional democracy.”62

The primary purpose of the independence was to protect the municipalities from political party,

or national and provincial governments.63

In support of this view, the Court referred back to an

earlier case where it rejected a move by the Minister to reject an official recommendation of the

Board on organization. 64

The Court goes on to give two factors in determining whether the Board’s constitutional

authority is subject to amendment. “The answer... depends in the first place upon the purpose

and effect of the Twelfth Amendment and, in the second place, on the nature and the scope of the

powers of Parliament to alter provincial boundaries.”65

The Court minces no words in regards to the first factor:

There can be no question that the purpose of the Twelfth Amendment is “to

redetermine the geographical areas of the nine provinces of the Republic of South

Africa”. The Preamble to the Twelfth Amendment makes this abundantly clear...

Nor can there be any question that the effect of the Twelfth Amendment is to

re-determine the boundaries of Sisonke and Alfred Nzo District

Municipalities.66,67

The Court identifies the issue in terms of whether the lawful application of Parliament’s

power to redefine provincial boundaries extends to municipal boundaries that are caught up in

the provincial organization.68

The Court found that there is an implicit limitation to the Board’s

authority to change municipal boundaries which interfere with provinces is subject to approval

61

S. African Constitution § 155(3)(b). 62

Matatiele, I at 41 63

Id. 64

Executive Council, Western Cape Legislature above n 15 at para 50. 65

Matatiele I, at 45. 66

The Preamble’s text: To amend the Constitution of the Republic of South Africa, 1996, so as to effect a technical change; to re-determine the geographical areas of the nine provinces of the Republic of South Africa; and to provide for matters connected therewith. 67

Matatiele I, at 46. 68

Id. at 48.

18

by provincial and legislative approval. 69

It also decided that Parliament, in elimination the cross-

provincial problem, would necessarily have to interfere with municipal boundaries due to the

nature of the action being undertaken. And because of that, “[t]he power of Parliament to redraw

provincial boundaries therefore includes the power that is reasonably necessary for the

exercise of its power to alter provincial boundaries.”70

However, the Court also declared that

more hearings were needed to decide whether the failure to hold public hearings invalidated the

amendment for a lack of due process, and ordered further hearings to that issue.71

For the Court, the spirit of community and equal voice in matters important to the people

are the foundation upon which the South African Constitution was laid:

Consistent with our constitutional commitment to human dignity and self-respect,

section 118(1)(a) contemplates that members of the public will often be given an

opportunity to participate in the making of laws that affect them. As has been

observed, a “commitment to a right to . . . public participation in governmental

decision-making is derived not only from the belief that we improve the accuracy

of decisions when we allow people to present their side of the story, but also from

our sense that participation is necessary to preserve human dignity and self

respect.”72

The court would overturn because the South African Constitution requires that the

provincial government and people be notified and consulted prior to the change in borders. Here

it found that Parliament’s lack of public hearings on the topic failed to provide the spirit of

communication and cooperation that are constitutionally required.73

And it rejected the

government’s argument that a representative form of government was sufficiently valid.74

The

court further laid down requirements of positive rights that a province may need to undertake in

69

Id at 49. 70

Id. at 50 71

Id. at 84. 72

Matatiele, II at para 63 (internal citations omitted). 73

Id at para 41 74

Id at para 63.

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facilitating such public meetings, “[The provincial legislatures] may include providing

transportation to and from hearings or hosting radio programs in multiple languages on an

important bill, and may well go beyond any formulaic requirement of notice or hearing.”75

It did,

however, note such public hearings were not be required in all cases, but instead depended on the

importance of the matter and the discreteness of the population affected.76

So the impact of identity is of incredible persuasiveness in South Africa. Interestingly

enough, the Court ruled that the Eastern Cape provincial government had satisfied the

requirement of notification and hearing holding required taking input and reports from

stakeholders and with meetings in both rural and urban communities. However, the failure of

KwaZulu-Natal and National Assembly to take similar steps resulted in the law being rejected.

Eventually, under the 13th Amendment, the reorganizations were ultimately carried out, after

sufficient public input was gathered by all parties.

The dissent was centered mostly on the lack of textual support for the argument. Article

29 includes no requirements for a public hearing on the matter, instead leaving it to a two-thirds

majority in the National Assembly, and six-of-nine vote in the National Council of Provinces.77

The requirements for public notice and hearings were applied from a case that the Court ruled on

decided the day before Matatiele, II opinion was released.78

Because Scotland

So all of that discussion of constitutional courts’ interpretations of the law is fine and

good, but what if, for argument’s sake, there is a great and powerful nation that refuses, for

75

Id at para 67 76

Id at para 68 77

Article 29 S. Africa Const. 78

Doctors for Life International v The Speaker of the National Assembly and Others, (CCT12/05) [2006].

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whatever reason, and despite its various constitutional crises throughout the years, to write down

its constitution? Well, apparently that, entirely hypothetical, nation can take a wager with the

would-be separatist entity and bet against the spread that it would be unable to garner sufficient

popular support actually separate.79

Depending on who one would listen to, this is either a valid,

constitutional method for getting an independent state, 80

or questionable methodology at best.81

However, that analysis does this paper, focused on constitutional analysis of sub-national

boundaries, little in the way of usefulness. Fortunately for this paper, this totally fictional

circumstance has a real-life corollary in the United Kingdom. This staunch subscription its

constitutional identity of popular sovereignty displays itself in the doctrine of parliamentary

supremacy. Because of this doctrine, Parliament is able to do pretty much whatever it wants – of

course, with the knowledge that it might well be rolled back if the majority loses its position in

the next election.

Unsurprisingly, and luckily for the sake of this paper, this constitutional doctrine has

manifested itself on county-level borders of the UK. In the Local Government Act 1972,

Parliament set about, inter alia, to realign various county governments with a two-tier system of

metropolitan and rural counties which lost some of their independence to become administrative

divisions under parliament. Perhaps somewhat unsurprisingly, given the mechanics of

parliamentary supremacy, these were altered later with additional subdivisions and local

government restructuring under acts of Parliament in 1992 and 2009. So then, it makes sense that

parliamentary supremacy is the platform and structure under which we need to discuss the

Edinburgh Agreement.

79

See generally the Edinburgh Agreement. 80

Edward Davis. EU LAW and the Separation of Member States. 36 Fordham Int’l. L.J. 1151, 1153. 81

Christine Bell. “.The Legal Status of the ‘Edinburgh Agreement’.” Scotland’s Future’s Forum. Nov. 5, 2012. (http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/431/Christine-Bell-The-Legal-Status-of-the-Edinburgh-Agreement.aspx)

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At its basic level, the Edinburgh Agreement is recognition by Parliament that the

discussion of Scottish independence belonged to the voters in Scotland, free from the opinions of

the rUK population. In a nation where the legislature can (more than less) unilaterally reorganize

its subnational boundaries, its maritime lines, and devolution of its principle “states,” there

should be little question about the legitimacy of the referendum – at least in the rUK. However,

given a quirk in the interplay between Scotland’s constitutional law that is foreign to the rUK,

one could certainly imagine the legitimacy of such a vote under Scots law which may not

recognize an act of the Scottish Parliament under the principles of supremacy, especially one on

this scale of importance.82,83

Regardless, now that the vote has been taken, and its result as laid

out in the Edinburgh Agreement is (maybe?) underway, the precedent has been set. Since both

Scots law and greater UK law recognize the importance of precedence, one presumes subsequent

referenda will be held under the same sort of rationale as 2014’s vote, further underlining its own

propriety and legitimacy for application in the future.

Conclusion

It is with all of the above research that ends with the final thoughts that all of the above

instances indicate that there are hallmarks of requirements that are applicable in both internal

boundary changes and, at least in amicable, separatist movements to work within guidelines laid

out in a nation’s existing laws. In all of the cases mentioned, as well as ones not mentioned, there

is a fair amount of agreement that considerations of due process, popular support and referenda,

and notions of justice to its minority populations be balanced with the needs of the state to

82

See MacCormick v. Lord Advocate, 1953 SC 396: “[T]he principle of unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish constitutional law.” 83

I contemplated for quite a while whether or not to introduce the potential role of this seeming continuation of federalism (as an extension of the existing devolution principles) inside of the UK’s unitary system, eventually deciding that was too much “creep” from the aim of the paper.

22

realize its privileges and duties to all of its citizens, not just those of the raucous majority.84

South Africa’s court emphasized the necessity of notice and voice of its populace. Germany was

primarily concerned with its historic preservation of cultural community and individual dignity,

but not at the expense of the nation as a whole. The United States’ Constitution hints toward the

ability of a state to opt-out, but prioritizes the sanctity of the Union by first requiring an act of

state legislations and final approval by Congress.85

The Scotland-rUK situation emphasized,

through the Edinburgh Agreement, the clear opinions of the people and allowed for

communication to continue about their respective positions regardless of the outcome of the

referendum. The end results of all of the variations reviewed, afford both the state-actor and the

group seeking secession ample due process rights, and do so under the scaffolding of their

constitutional schemes in ways that seem able to support both administrative and separatist

boundary changes.

84

For instance the Canadian supreme court’s decision on Quebec. 85

Texas v. White, 74 U.S. 700 (1869).