ChapterPDF Available

Federalism, Secession & Devolution: From Classical to Post-Conflict Federalism



Federalism has long been a topic of study for comparative constitutional law. However, the scholarly literature on federalism is in a process of transition. For most of the twentieth century, the study of federalism was oriented around a standard set of cases in the developed world: Australia, Canada, Switzerland and the United States of America. These cases provided the raw material for certain fundamental questions: What is federalism? Why should federations be adopted? What role is there for courts? For the most part, these questions appear to have been answered, often with the aid of comparative analysis. To be sure, important debates persist. For example, scholars disagree over the relative priority to be given to the different goals served by federalism and how those goals should shape the allocation of jurisdiction. In the area of environmental policy, for example, new opportunities for democratic self-government and policy experimentation argue for greater regional authority but also generate inter-jurisdictional externalities, which argue against it. This debate relies on an implicit understanding of its terms and range, and participants in such discussions of federalism often draw on the same standard set of jurisdictions as illustrations of models to be followed and dangers to be avoided. Recent developments in the practice of constitutional design have challenged this consensus. Many states in the developing world, such as Ethiopia, Iraq, Nigeria and Sudan, have adopted federal solutions to manage ethnic conflict, often as part of a broader package of post-conflict constitutional reforms. In these federations, internal boundaries are drawn to ensure that territorially concentrated national minorities constitute regional majorities. The difference between the standard and emerging cases is not just geographic. Rather, the very mission of federalism is different. Its principal goals are not to combat majority tyranny or to provide incentives to states to adopt policies that match their citizens' preferences, but rather to avoid civil war or secession. Federalism promotes not public accountability or state efficiency but rather peace and territorial integrity. It is this concern for violence and territory, inspired by contemporary problems, that sets post-conflict federalism apart from consociationalism, a canonical approach to ethnic divisions and democracy. Post-conflict federalism also pursues different goals than classical federalism and thus provides an opportunity to revisit the basic assumptions underlying the field. Advocacy of federalism as a tool for managing ethnic conflict continues to grow, with respect to a diverse set of cases that spans the globe from South and East Asia to Eastern Europe. However, its purported benefits have been challenged by those who argue that federalism exacerbates, instead of mitigates, ethnic conflict. This academic debate about the merits of post-conflict federalism has reached an impasse, largely as a consequence of methodology. Proponents and opponents of drawing boundaries to empower national minorities point to different cases of federal success and failure. But recent scholarship in comparative politics that combines large-n quantitative analysis with small-n qualitative case studies promises a way forward. It shows how we might test these competing claims about the ability of federalism to control ethnic conflict across a variety of cases and begin to identify the factors that explain when post-conflict federalism succeeds and when it does not.
20. Federalism, devolution and secession: from classical
to post-conflict federalism
Sujit Choudhry and Nathan Hume
Federalism has long been a topic of study for comparative constitutional law. However, the
scholarly literature on federalism is in a process of transition. For most of the twentieth
century, the study of federalism was oriented around a standard set of cases in the developed
world: Australia, Canada, Switzerland and the United States of America. These cases
provided the raw material for certain fundamental questions: what is federalism? Why should
federations be adopted? What role is there for courts? For the most part, these questions
appear to have been answered, often with the aid of comparative analysis. To be sure, impor-
tant debates persist. For example, scholars disagree over the relative priority to be given to
the different goals served by federalism and how those goals should shape the allocation of
jurisdiction. In the area of environmental policy, for example, new opportunities for democ-
ratic self-government and policy experimentation argue for greater regional authority but also
generate inter-jurisdictional externalities, which argue against it. This debate relies on an
implicit understanding of its terms and range, and participants in such discussions of federal-
ism often draw on the same standard set of jurisdictions as illustrations of models to be
followed and dangers to be avoided.
Recent developments in the practice of constitutional design have challenged this consen-
sus. Many states in the developing world, such as Ethiopia, Iraq, Nigeria and Sudan, have
adopted federal solutions to manage ethnic conflict, often as part of a broader package of
post-conflict constitutional reforms. In these federations, internal boundaries are drawn to
ensure that territorially concentrated national minorities constitute regional majorities. The
difference between the standard and emerging cases is not just geographic. Rather, the very
mission of federalism is different. Its principal goals are not to combat majority tyranny or to
provide incentives for states to adopt policies that match their citizens’ preferences, but rather
to avoid civil war or secession. Federalism promotes not public accountability or state effi-
ciency but rather peace and territorial integrity. Post-conflict federalism pursues different
goals than classical federalism and thus provides an opportunity to revisit the basic assump-
tions underlying the field.
Advocacy of federalism as a tool for managing ethnic conflict continues to grow, with
respect to a diverse set of cases that spans the globe from South and East Asia to Eastern
Europe. However, its purported benefits have been challenged by those who argue that feder-
alism exacerbates, instead of mitigates, ethnic conflict. This academic debate about the merits
of post-conflict federalism has reached an impasse, largely as a consequence of methodology.
Proponents and opponents of drawing boundaries to empower national minorities point to
different cases of federal success and failure. But recent scholarship in comparative politics
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
that combines large-sample quantitative analysis with small-sample qualitative case studies
promises a way forward. It shows how we might test these competing claims about the abil-
ity of federalism to control ethnic conflict across a variety of cases and begin to identify the
factors that explain when post-conflict federalism succeeds and when it does not.
Three questions dominate the classical literature on comparative federalism. What is federal-
ism? Why should we adopt it? What role is there for courts? These questions and the stan-
dard answers to them are drawn from the experiences of a few canonical federal states and
the dominant academic accounts of those experiences. The model we call ‘classical federal-
ism’ emerges from these analyses.
2.1 What is Federalism?
What is federalism? In his seminal Federal Government, K.C. Wheare provided this influen-
tial definition of the ‘federal principle’: for a state to be federal, ‘the general and regional
governments must be coordinate and independent in their respective spheres’ (Wheare 1964:
4–5). The constitutional implications of this federal principle included a written constitution
expressly conferring powers on the central and regional governments, a system of direct elec-
tions for both levels of government, the power of each level of government to act (or not act)
independently of the other, and the existence of an independent high court to serve as the
‘umpire’ of federalism. This definition has informed many investigations into the political,
social and institutional conditions required for different orders of government to preserve
their independence while coordinating their actions (Elazar 1987). It also has inspired schol-
ars to propose other definitions. For example, William Riker criticized Wheare for fostering
a legalistic approach to federalism and offered an alternative formula: federalism is ‘a politi-
cal organization in which the activities of government are divided between regional govern-
ments and a central government in such a way that each kind of government has some
activities on which it makes final decisions’ (Riker 1975: 101). While Riker’s definition does
not emphasize the use of constitutions to create and entrench federal arrangements, it is iden-
tical in substance (Riker 1964: 11). Ronald Watts, by contrast, elaborated Wheare’s constitu-
tional model. He added the formal distribution of legislative and executive authority, the
allocation of sufficient revenues to ensure the autonomy of each order of government, the
representation of regional views in the central legislature (e.g. through an upper chamber), a
constitutional amendment procedure requiring a substantial degree of regional consent, and
an enforcement mechanism that included courts, referendums or a special role for the upper
chamber (Watts 1966).
Wheare developed his definition from a set of standard cases that embodied the federal
principle to varying degrees: Australia, Canada, Switzerland and the United States. To be sure,
Watts extended the field to the new federations then emerging from the British Empire (i.e.
India, Pakistan, Malaysia, Nigeria, Rhodesia and the West Indies) and firmly demonstrated
that federalism was not confined to Wheare’s four original cases. But those classical federal
constitutions set the intellectual agenda for the study of federalism, and they continue to serve
as the focus, or at least the point of departure, for orthodox engagements in comparative
Federalism, devolution and secession 357
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
federalism. As the initial and most prominent modern example of federalism, the United
States is often considered first among equals. Although Daniel Elazar attributed a biblical
pedigree to his preferred definition (‘shared rule plus self rule’), he identified American
federalism as the prototype for modern federalism and used it to orient his explorations in the
field (Elazar 1987: 12 and 144–6). Riker also used his model of American federalism to make
sense of federal experiments elsewhere (Riker 1964; Stepan 2001). With its rich history and
widespread influence, American federalism remains a valuable foil for contemporary devel-
opments elsewhere, including the European Union (see, e.g., Nicolaidis and Howse eds.
2001). This narrow focus has facilitated comparative investigation, but it also has limited the
relevance of the literature. The four central cases are relatively stable, prosperous and demo-
cratic. They have rarely faced domestic threats to their very existence. The theories and
models that have resulted from elaborating their conditions may illuminate aspects of their
experience but, at the same time, obscure distinctive developments elsewhere. Many legal
scholars interested in comparative federalism have followed the lead of these political scien-
tists by examining the same classical cases and seeking to elaborate or complement their
arguments (see e.g. Aroney 2006).
The question of what is federalism has raised two derivative questions. First, what is not
federalism? Historically, scholars were preoccupied with distinguishing federations from
confederations on the basis of the mechanism for choosing political office-holders in central
institutions. In federations, citizens elect central governments directly, whereas in confeder-
ations, delegates of regional governments run central institutions (Watts 1998). More
recently, scholars have emphasized the distinction between devolution and decentralization,
on the one hand, and federalism, on the other (Cross 2002; Feeley and Rubin 2008).
Devolution and decentralization have the same political dynamic and legal form. They both
involve the redistribution of authority and capacity from the central government to smaller,
subordinate units of government. Consistent with this dynamic, attempts to devolve and
decentralize power typically take the form of laws or regulations adopted unilaterally by the
central government, in contrast to federal constitutions, which are often understood as
compacts among the constituent regions. Although similar in many ways, devolution is
thought to entail larger and more powerful sub-units than decentralization: comparable to
provinces and municipalities, respectively (Grindle 2009). In contemporary discussions,
devolution is regularly identified with the United Kingdom, while decentralization is
observed in a large number of jurisdictions. However, the lack of standard definitions for
devolution and decentralization make generalizations of this sort unhelpful. Following
Wheare’s definition, the key difference between federalism and these other forms of govern-
ment is that the autonomy of the regions that comprise a federation is guaranteed by a consti-
tution that the central government may not alter unilaterally, whereas the institutions that
exercise delegated powers in a decentralized or devolved political system may have their
powers modified or revoked by the central government, often through the ordinary legislative
Second, which constitutions that appear to be federal truly deserve that label? Even if the
central and regional governments derive their powers from a constitution, on closer look that
constitution may fall short of federal status. Wheare himself originally described India and
even Canada as ‘quasi-federal’ due to their centralizing tendencies. In Canada, he was
concerned with the power of the federal government to prevent provincial laws from coming
into force (disallowance) or to set aside provincial legislation (reservation); in India, he was
358 Comparative constitutional law
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
bothered by the power of Parliament to unilaterally create new states and change state bound-
aries, as well as the power of the central government to assume the direct rule of states in an
emergency (President’s rule) (Wheare 1964). The difficulties raised by the standard defini-
tion prompted Elazar to pursue a more ambitious project, in which he sought to catalogue the
many institutional manifestations (‘species’ or ‘expressions’) of the federal principle, from
confederations and federacies to leagues and condominiums (Elazar 1987: 38–59). Such
conceptual and categorical refinements may help to resolve certain descriptive or theoretical
controversies. From the standpoint of public policy, their value is more ambiguous. On the
one hand, they serve to catalogue the variety of constitutional forms through which states can
respect the federal principle. In short, they indicate the broad scope for constitutional choice.
On the other hand, they may draw political actors into debates over categorization (e.g.
whether a proposed constitutional design is federal or confederal) that divert attention from
the concrete political problems to which federalism is a response. Such debates might lead
political actors to conclude that the constitutional forms discussed exhaust the institutional
possibilities of federalism, when they are better understood as variations on a theme that
remains open to a great deal of adaptation and experimentation.
Some scholars working within the traditional paradigm have responded to these concerns
by performing empirical surveys of existing federal systems (see e.g. Kincaid and Tarr eds.
2005; Griffiths ed. 2005; Majeed et al. eds. 2006; Watts 2008; Halberstam and Reimann
forthcoming). These surveys extend far beyond the four core cases of Australia, Canada,
Switzerland and the United States. However, the current literature suffers from shortcomings.
Although these studies amass a large amount of material on federalism and its many forms,
they are rarely analytical and generally do not seek to explain the commonalities and diver-
sity that exist in the design and operation of federal systems. Moreover, there has been little
attempt to evaluate the success of the design choices made by different federations. The flight
from prescription is fuelled by the methodology of these studies, which employ a minimal or
ecumenical definition of federalism and aim to identify its various manifestations. This line
of research should therefore be understood as an important first step that provides the raw
material for more analytical and prescriptive work.
2.2 Why Federalism?
Classical federalism presupposes a shared account of how federations come into being.
Federations form from pre-existing political units that are politically independent from each
other. They may be sovereign states or colonies in an imperial order that lack full statehood
but enjoy extensive rights of self-government. These political units are the actors that decide
to form a new political community, which entails the pooling and surrendering of some of
their sovereignty to a central government while retaining an important degree of autonomy.
The central government’s authority is derived from this political agreement. The federal
constitution is a pact, compact or bargain among the regions; this agreement constitutes the
central government, creates its institutions and allocates powers to them. Riker built his
theory of federalism on this account, which Al Stepan aptly terms ‘coming-together federal-
ism’ (Stepan 2001: 320).
Set against this backdrop, ‘why federalism?’ becomes a two-part question. First, ‘why should
existing political units combine in any form?’ Scholars of classical federalism tend to invoke
either collective security or economic prosperity (Riker 1964; Wheare 1964). A federation can
Federalism, devolution and secession 359
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
be understood as a mutual defence alliance against external military threats. Whether the
threat comes from a former colonial ruler or another state seeking to expand its territory, the
members of a federation can provide a more effective deterrent together than alone. A feder-
ation also can be understood as a common market that is larger and more efficient than one
in which international borders impede the flow of goods, services and capital.
Since political units that desire such military and economic benefits could choose to
pursue them by pooling their sovereignty in a new unitary state, the second part of ‘why
federalism?’ is ‘why federalism and not unitary rule?’ As a preliminary matter, federalism
may reduce the burden of coming together and thus make union more likely and more durable
than if previously independent units sought to form a single unitary state. Federalism allows
groups that have a history of self-government or a distinct culture or economy to preserve
some measure of autonomy (Wheare 1964; Watts 1966). By definition, it offers the benefits
of unity without the costs of imposing uniformity on a diverse population.
Once formed, a classical federal system is believed to offer numerous advantages over a
unitary state. For example, it is thought to bolster democracy by guaranteeing the existence
of a tier of regional governments. It not only ensures another set of offices to elect and contest
and thus increases the number of opportunities for political participation; it also improves the
quality of political participation by empowering relatively small political communities, in
which citizens are more likely to have more in common, individual votes and voices are likely
to have more influence, and representatives are likely to be more responsive to their concerns
(see e.g. Merritt 1988; Friedman 1997). Classical federalism also is said to enhance efficiency
in various ways. The existence of two tiers of government allows a diverse society to allocate
responsibilities and assign liabilities in a manner that improves the quantity and quality of
public goods by engineering a closer fit between those who benefit from them and those who
bear the cost. Those goods, like military defence, that the regions might fail to produce
adequately can be assigned to the central government, while those that depend on local
knowledge and preferences, like education and perhaps some aspects of environmental regu-
lation, can be left to the regions (Esty 1996; Revesz 1996). In addition, federalism makes it
easier for citizens to move from one region to another, which means they can sort themselves
into like-minded communities and, through the enduring threat of exit, impel their govern-
ments to satisfy their diverse policy preferences as well as or better than another regional
government might (Tiebout 1956). Finally, federalism is believed to protect liberty by rein-
forcing limited government. By dividing power between the two levels of government, it
gives politicians at each level the incentives and the means to prevent their counterparts from
abusing their constitutional authority (Federalist No. 51 (Madison); Merritt 1988; Amar
1991). By engineering a competition among regional governments for mobile people,
resources and money, it also ensures that those governments face economic and political pres-
sure to refrain from infringing upon property rights and markets: a result that just so happens
to enhance economic efficiency across the federal system (Weingast 1995).
These arguments prompt an array of critical responses. Some concern the manner in which
federalism has been implemented: actual regions are too big, centralized and heterogeneous
to deliver the democratic dividends associated with small political units (Briffault 1994;
Cross 2002); they are too few and too similar (and the practical constraints on the mobility of
individuals and ideas remain too severe) to sustain meaningful inter-jurisdictional competi-
tion and thus do not enhance efficiency or promote innovation as promised (Daniels 1991;
Feeley and Rubin 2008); they have not, in practice, served as reliable bulwarks against
360 Comparative constitutional law
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
encroachments on individual and group liberties, whether by central governments or other
regions (Shapiro 1995); their boundaries are too rigid and arbitrary to capture the myriad
externalities their policies produce (e.g. positive and negative, economic and environmental),
and agreements to redistribute those burdens and benefits efficiently are too difficult to nego-
tiate and enforce, so they are not likely to supply an optimal bundle of public goods, regula-
tory or otherwise (Levy 2007). Other criticisms concern inherent characteristics of
federalism. Most importantly, federalism has democratic costs that must be weighed against
its contested democratic benefits. While it empowers discrete provincial majorities to make
certain decisions, it compromises the ability of the national majority to set policies for the
entire country. Indeed, by setting constitutional limits on the concentration and exercise of
government authority, federalism may frustrate attempts to address our most pressing moral
and practical problems (Riker 1964; Stepan 2001).
The arguments for and against federalism are well known. Many of them are drawn from
American experience, and together they constitute the intellectual framework for contempo-
rary analytical work on federalism within the classical mold. Although debates about feder-
alism remain vigorous, the classical framework within which they occur is fairly stable. These
criteria do not themselves require comparative analysis, and there is a vast body of country-
specific work that relies on them without reference to foreign federal examples. Although the
bulk of this work is done in economics and political science, legal scholars contribute to and
draw upon this literature. In the American legal academy, for example, there has been an
extensive debate on environmental policy and federalism. Participants dispute not only the
optimal allocation of responsibility for environmental regulation among the federal and state
governments but also the proper basis on which to make such decisions (see e.g. Stewart
1977; Revesz 2001).
In addition, there have been a smaller number of comparative studies that draw upon this
intellectual framework in specific substantive areas. The work is both analytical and prescrip-
tive. Comparative models offer both negative and positive guidance. Barry Weingast has
collaborated with other scholars to elaborate and apply his conception of market-preserving
federalism in countries from England and the United States to India and Russia (Parikh and
Weingast 1997; Figueirido et al. 2007). Similar projects have considered topics that range
from environmental regulation (Kimber 1995; Farber 1997) and the evolution of corporate
law (Stith 1991; McCahery and Vermeulen 2005; Deakin 2006) to the fight against cyber-
crime (Mendez 2005). The arguments may be familiar but, perhaps for that very reason, ‘why
federalism?’ remains a rich and relevant question.
2.3 What Role for Courts?
Comparative legal analyses of the judicial role in federations present a puzzle. Scholars and
statesmen alike have long recognized that courts are an important, if not an integral, compo-
nent of federal government because of the need for a mechanism to resolve jurisdictional
disputes (Federalist No. 78 (Hamilton); Wheare 1964; Watts 1966). Not surprisingly, consti-
tutional judicial review first developed in three of the classical federations: the United States,
Canada and Australia. As federalism spread to Latin America in the nineteenth century, judi-
cial review came along with it. Indeed, the rise and spread of judicial federalism occurred
more than a century before the global diffusion of judicial power associated with the ‘Rights
Revolution’ and the third wave of democratization. However, whereas this more recent
Federalism, devolution and secession 361
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
phenomenon has inspired an explosion of comparative literature, judicial federalism has
attracted less comparative attention.
In part, this may be a function of the different roles played by courts of final appeal in main-
taining different federal systems. In India, debates over state boundaries and the imposition of
President’s Rule eclipse questions about the role of courts in the federal system. Likewise
Ethiopia, where disputes between the ethnic groups that comprise the federation are resolved
not by judges but by the upper house of Parliament (Baylis 2004). By contrast, the United
States Supreme Court has been actively engaged in the adjudication of federalism disputes
during various periods of American history. This discrepancy, coupled with the passionate
American debate over judicial review, may explain why the bulk of the comparative work on
judicial federalism is American in origin. But even in the United States, it has been suggested
that the primary determinants of the federal balance lie in the political process, and that courts
play the role of enforcing constitutional baselines, such as subsidiarity, the right to free move-
ment, the institutional integrity of the federal and state governments, the prohibition on state
discrimination against persons, goods and services originating in other states, and the various
burdens of justification for government action (Halberstam 2008).
The literature on courts and comparative federalism emphasizes both substance and
method. The former involves the constitutional concepts, rules and doctrines appropriate or
even necessary for a court operating within a federal system. These include democratic ideals,
conflict-of-laws rules, tests for territorial jurisdiction and, more controversially, an anti-
commandeering principle (see e.g. Halberstam 2001). Such tools enable courts to maintain
and even tinker with the federal structures of their constitutions as circumstances and endeav-
ors evolve. For example, the Supreme Court of Canada has selectively invoked American
constitutional text and doctrine to support the introduction of unwritten constitutional princi-
ples of order, fairness and efficiency that reconcile elements of Canadian private international
law and thus the Canadian federal system to what it perceives as contemporary economic
imperatives (Hume 2006).
The latter concerns the risks, benefits and legitimacy of judicial references to foreign law
when dealing with federal aspects of the constitution. Some theorists encourage such refer-
ences because knowledge about foreign arrangements can illuminate new domestic possibil-
ities and clarify existing practices. For example, Halberstam suggests that German
constitutional practice could serve as a model for American courts to shift the political moral-
ity underlying American federalism jurisprudence from one that emphasizes the entitlements
of different orders of government to decide whether to act in a cooperative or competitive
manner to a fidelity approach that imposes duties to cooperate and act responsibly in the inter-
est of the entire system (Halberstam 2004). Others are more equivocal about the relevance of
foreign federal experiments for domestic judges, since federal constitutions are package deals
defined by contextual compromises. More a product of pragmatism than of principle, their
lessons often require intimate knowledge of their history and operation, which judges from
other countries rarely possess. Nonetheless, Vicki Jackson concedes that judges might profit
from studying foreign experience when deciding issues of federal structure and constitutional
principle on which the relevant text is silent (Jackson 2004).
These debates are important, but their importance is limited to those countries in which
courts play a major part in the federal system. Such issues are unlikely to resonate in federal
states where the constitution is viewed predominantly as a contested, contingent political
compromise rather than as a settled legal framework for the resolution of political controver-
362 Comparative constitutional law
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
sies. More generally, arguments that deduce the nature and implications of federalism from a
small and increasingly unrepresentative sample of states risk error and irrelevance when
applied beyond that narrow realm.
3.1 Setting the Stage
Scholars who contribute to the literature of classical federalism disagree on many important
issues: the goals served by federalism, their relative priority, the weight of any countervailing
considerations and the manner in which the design of a federal system should reflect these
calculations. However, this literature also tends to rely on a shared yet generally tacit set of basic
assumptions. These assumptions include the following: once pre-existing political units have
come together in a federal state, they shall remain members of a single political community
bound in a common constitutional order; this new political community is a nation that inhabits
the entire territory of the state and possesses the right to self-government; and debates over the
design of the federal system are debates about how this nation should organize itself internally
and thus do not raise the prior question of whether the nation should continue to exist.
That existential question is precisely what lies at the heart of constitutional politics in what
Choudhry has termed a divided society (Choudhry 2008). As a category of political and
constitutional analysis, a divided society is not merely a society that is ethnically, linguisti-
cally, religiously or culturally diverse. The age of the ethnoculturally homogeneous state, if
there ever was one, is long over. What marks a divided society is that these differences are
politically salient. That is, they are persistent markers of political identity and bases for polit-
ical mobilization. In a divided society, ethnocultural diversity translates into political frag-
mentation: political claims are refracted through the lens of ethnic identity, and political
conflict is synonymous with conflict among ethnocultural groups.
Scholars of ethnic politics have long drawn distinctions among different types of ethnic
groups. There are many dimensions on which to do so: the relationship they assert between
ethnicity and territory, the manner in which they have been incorporated into their respective
states, their relative economic and political status, the terms in which they frame their consti-
tutional arguments and the substance of their constitutional claims. One such type is what
Will Kymlicka has termed a national minority (Kymlicka 1995). National minorities are
regionally concentrated ethnic groups who once enjoyed political autonomy and have become
part of states in which they constitute an ethnic minority through conquest, colonization or
voluntary incorporation. Other terms for this type of ethnic group include ‘ethnonationalists’
(Gurr 1993: 18–20). They mobilize politically around assertions of national identity and self-
determination. The goal of such mobilization is to recover the extensive self-government they
claim to have enjoyed historically. The degree of self-government they seek ranges from
autonomy to independent statehood, which would entail secession. National minorities accept
the premise that states are the means by which nations exercise their right to self-determina-
tion over their territory, but they use this premise to challenge particular combinations of
state, nation and territory. National minorities argue that the state in which they live contains
more than one nation, that each of those nations possesses an inherent and identical right to
self-determination, and that they are therefore entitled to their own separate state.
Federalism, devolution and secession 363
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
Why do national minorities mobilize, and why do they anchor their specific policy goals
around the right to self-determination? The ‘grievance’ or ‘relative deprivation’ school of
civil war studies, which focuses on the question of how ethnic conflict becomes violent,
offers a leading answer to these questions. On this account, ethnic difference per se is not the
spark for the rise of ethnic politics. Rather, ethnic groups mobilize politically in response to
their experience of economic and political disadvantage. Political disadvantage entails the
systematic limitation of access to political office or basic political rights; economic disad-
vantage involves the systematic denial of economic goods and opportunities. The different
dimensions of disadvantage are often mutually reinforcing: political disadvantage insulates
politics from attempts to address economic disadvantage, and economic disadvantage under-
mines an ethnic group’s ability to exercise political influence. Ethnic groups vary in their
response to disadvantage. Some groups may demand the reform of those state institutions in
which they are consistently outvoted. National minorities entertain secession because they
desire the additional protection that comes from forming a political majority in an indepen-
dent state. Most ethnic groups demand voice; national minorities emphasize exit.
Some states resist political mobilization by national minorities because the very existence
of such groups threatens the equation of nation, state and territory on which those states base
their claims to political legitimacy. A state that perceives its territory as indivisible and inte-
gral to its identity may be more likely to react in that manner (Toft 2003). In such cases, there
is a clash between competing nationalisms with parallel logics: a minority nationalism that is
confined to one region and seeks to realign nations, states and territories; and a statewide
nationalism that asserts the exclusive existence of a single nation throughout the territory of
the state and thus denies the need for realignment. Gurr argues that the conflict between
competing nationalisms typically escalates in stages: from non-violent protest to violent
protest and finally to rebellion. This escalation occurs through a pattern of demands and
responses: non-violent protest is met with a lack of political responsiveness, which in turn
leads to violent protest, which is met with a violent reaction, and which then leads to rebel-
lion and an armed conflict (i.e. civil war). Indeed, the evidence suggests that self-determina-
tion disputes are the most common variety of civil war and are more resistant to settlement
than other kinds of disputes, especially when states face more than one potential separatist
claim (Walter 2009).
3.2 Theoretical Debate
This diagnosis suggests that minority nationalism may lead to civil war and secession. The
question is whether federalism, either on its own or as part of a larger package of constitu-
tional reforms, is an effective response that diminishes these risks and serves peace and terri-
torial integrity. This question has sparked a vigorous academic debate (Hale 2008). Scholars
fall into one of two diametrically opposed camps. One school holds that federalism can
dampen secessionist sentiment; the other holds that federalism will in fact fuel it. In other
words, federalism is either a solution or a catalyst for ethnic violence. Thus framed, these two
positions are mutually exclusive.
Classical federalism cannot answer this question because it focuses on polities in which
the existence of the nation is not the crux of constitutional politics. For example, although
Wheare and Watts observe how federal systems can accommodate racial, religious and
linguistic differences, these concerns are peripheral to their work. By contrast, this is the
364 Comparative constitutional law
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
central question for post-conflict federalism and it is the subject of vigorous and ongoing
debate. The core design feature of post-conflict federalism is the drawing of internal borders
to ensure that a national minority constitutes a majority in a region. The allocation of juris-
diction between different levels of government ensures that the national minority is not
outvoted by the majority and has sufficient powers to protect itself from economic and polit-
ical disadvantage. These arrangements are constitutionally entrenched and enforced by inde-
pendent courts. This approach has been variously termed multinational federalism,
plurinational federalism, ethnic federalism or ethnofederalism. It even shares some features
and sympathies with what Stefan Wolff has labeled ‘complex power sharing’ (Wolff 2009).
Here, we refer to ‘post-conflict federalism’ because we want to focus on how federalism in
particular can help to contain and perhaps quell ethnic conflict. Although some of the soci-
eties that have adopted the arrangements we discuss have not yet suffered secession, ethnic
violence or civil war, the term ‘post-conflict’ is still appropriate, since federalism is designed
to prevent such conflict from occurring, and those societies are often deployed as positive
constitutional models in post-conflict contexts.
The stakes in these debates are very high. Many states in the developing world, such as
Ethiopia, Iraq, Nigeria and Sudan, have adopted federal solutions to control ethnic conflict,
often as part of a package of post-conflict constitutional design. Moreover, the advocacy of
federalism as a tool for managing ethnic conflict continues to gather momentum around the
globe. In South Asia, federalism has been advocated as a solution for ethnonational conflict
in Nepal, Pakistan and Sri Lanka. Federalism has also been proposed as a remedy to the
frozen conflicts of the former Soviet Union: Armenia, Azerbaijan, Georgia, Abkhazia, South
Ossetia, and Nagorno Karabach. In the world of post-conflict constitutional design, it has
been ‘marketed as a palliative to secessionist conflict’ (Erk and Anderson 2009: 191).
However, while Philip Roeder seems to suggest that post-conflict federalism has emerged as
the presumptive policy prescription to manage ethnonationalist conflict, Will Kymlicka has
the better view. He carefully charts how, in Eastern and Central Europe, international institu-
tions have taken a much more ambivalent and complex stance to post-conflict federalism,
firmly rejecting it as part of the emerging international legal framework regarding the rights
of national minorities, while accepting it on a case-by-case basis in order to diffuse violent
conflict (Roeder 2009; Kymlicka 2007). But even with that caveat, if federalism exacerbates
rather than mitigates conflict, then the most recent wave of constitutional design proceeds
from dangerously erroneous premises. It is vitally important to determine how federalism
actually performs in such difficult circumstances.
The centre of gravity in this academic debate is firmly anchored in political science.
Ethnonationalism and secession have been studied by scholars working from a variety of sub-
fields within that discipline: political sociology, comparative politics, international relations
and political theory. Although their debates, questions, motivations, frameworks and method-
ologies may differ, these scholars share a reliance on qualitative research methods that focus
on a relatively small number of cases to explain the complex relationship between constitu-
tional design and political behaviour in states with politically mobilized national minorities.
On the one hand, there are those who argue that federalism dampens secessionist senti-
ment. Kymlicka, a political theorist, is representative of this position (Kymlicka 1998). He
proceeds from the starting point that ethnic conflict in states with politically mobilized
national minorities is, at root, a conflict between competing nationalisms. This is a zero-sum
conflict in which one side will necessarily lose. If secession occurs, a statewide nationalism
Federalism, devolution and secession 365
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
will lose territory that belongs to the nation as a whole. If secession does not occur, minority
nationalists will argue that state and nation must still be brought into alignment. Kymlicka’s
case for multinational federalism responds by challenging the premise that there must be a
one-to-one correspondence between nation and state. Post-conflict federalism acknowledges
that the state contains more than one constituent nation and structures its institutions in such
a way as to recognize and empower each of them. Post-conflict federalism halts the clamor
for secession without dismembering the state because it satisfies the demand for self-deter-
mination with powers of self-government that fall short of independent statehood. Although
they differ in some respects, many scholars have in essence taken this position: Nancy
Bermeo, Rogers Brubaker, Ted Gurr, Yash Ghai, Arend Lijphart, Al Stepan, and John
McGarry and Brendan O’Leary (Bermeo 2002; Brubaker 1996; Gurr 2000; Ghai 2000;
Lijphart 1977; Stepan 1999; McGarry and O’Leary 2009).
At first blush, post-conflict federalism may superficially resemble Riker’s ‘coming-
together’ federalism because each bases the legitimacy of federal arrangements on the
consent of the constituent units, which create and empower a central entity as part of a consti-
tutional bargain. But upon closer examination, both the process of creating a post-conflict
federation and the premises on which it relies are quite different. In most cases, a post-conflict
federation is created from a state that already exists, and the constitutional imperative is not
to make a new state but to reconstitute the existing one along federal lines in order to prevent
it from coming apart. The process of reconstituting an existing state as a post-conflict feder-
ation is suitably described as ‘holding together’ an existing political entity for which the alter-
native to reconstitution is secession or perhaps even dissolution (Stepan 1999). For Riker,
federalism is just one, often unsatisfactory, way for a nation to exercise its right to self-
government. The existence of a single political community, which governs itself through the
institutions and procedures created by the constitution, is not in question. For post-conflict
federalism, this is the fundamental question. To transform a unitary, devolved or classical
federal state into a post-conflict federation entails more than changes to its constitutional
structure. It requires a new understanding of the state as the institutional compromise required
to preserve a composite or layered political community in which the basic question of consti-
tutional politics is what the terms of political association should be among the constituent
nations (Simeon and Conway 2001).
This brief, abstract account of post-conflict federalism contains a number of ambiguities
on precise questions of constitutional design that require further research. Consider the causal
mechanism whereby federalism dampens the demand for secession. In the world of post-
conflict federalism, secession is a defensive response to the policies of the central govern-
ment. For federalism to be a substitute for secession, it must remedy the disadvantages these
policies cause by providing a constitutional self-defence mechanism for the aggrieved minor-
ity nation. But scholars differ on the character of the disadvantages against which federalism
is a defence. The design of an effective post-conflict federalism will accordingly vary
depending on the nature of the harms to which it is a response. Kymlicka (2001) and Brubaker
(1996) emphasize culture. They use the concept of nation-building to describe a set of poli-
cies that aim to create a shared national identity across a state by promoting a common
language and shared historical narrative. For them, regional jurisdiction over education and
the language of the public and private sectors will be of paramount importance. Scholars who
highlight the failure by central governments to ensure that national minorities receive
adequate benefits from the extraction of natural resources in their territories will prioritize
366 Comparative constitutional law
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
regional or local ownership, management and revenue-sharing. Gurr dwells on instances of
political discrimination, such as the exclusion of national minorities from political power and
public sector employment. On this account, any federal arrangements would multiply the
opportunities to wield political power.
Set against those who promote post-conflict federalism as a tool to manage and prevent
ethnonationalist conflict, there are scholars who argue that it not only will fail to stem seces-
sion but will have precisely the opposite effect and intensify the conflict it purports to
manage. Philip Roeder has offered the most recent and extended argument of this position.
He claims that post-conflict federalism is inherently unstable and is characterized by a
constant struggle between the two extremes of centralization and secession: ‘a recurring crisis
of politics’ that is oriented around ‘competing nation-state projects that pit homeland govern-
ments against the common-state government’ (Roeder 2009: 209). This political pattern is the
product of four purportedly unavoidable consequences of post-conflict federalism.
First, post-conflict federalism shapes the development of political identities, in particular,
regional political identities. The creation of an ethnically defined region has the effect of
institutionally privileging a conception of regional political identity in which the region is
imagined as the property and homeland of an ethnic group. Post-conflict federalism also
provides regions with the political and economic resources to develop these distinct identities
through jurisdiction over education, the adoption of official language policies and cultural
policy instruments such as public holidays and monuments. These regional identities will
compete with statewide political identities as a source of citizen identification and belonging.
They will become political resources for regional political elites to mobilize support during
conflicts with central authorities. Second, the multiplication of national identities within post-
conflict federations transforms the character of political conflict between the centre and the
regions. Moments of high constitutional politics that raise constitutive questions regarding the
status and the powers of the national minority and the relationship between the two nation-
building projects crowd out ordinary policy disputes; the latter are reframed as raising funda-
mental questions regarding the right to self-determination. National identity becomes the
principal political cleavage. As a consequence, political debate runs the constant risk of esca-
lating from the demand for greater powers toward the existential constitutional question of
secession, which would be the logical culmination of the nation-building project of the
national minority. Third, post-conflict federalism endows regional governments with coer-
cive policy instruments that national minorities can use as institutional weapons against
central authorities, whether by engaging in competitive nation-building or by pushing for
enhanced powers and greater autonomy. Such instruments may include the power to interfere
with statewide electoral processes and revenue collection. Finally, the constitutional empow-
erment of the regions entails not just autonomy but also an institutionalized voice in common
institutions, up to and including vetoes. These vetoes can weaken the decision-making abil-
ity of central authorities and hobble their ability to exercise their authority and thwart minor-
ity nationalism. Roeder’s views are shared by other scholars (Bunce 1999; Leff 1999;
Crawford 1998).
Roeder presents these four features as flowing from the logic of post-conflict federalism
and, by implication, as absent from mononational federations. But this is not entirely true. The
political resources he identifies – the ability to interfere with the operation of central authori-
ties through coercive means and regional vetoes in central institutions – are contingent features
of constitutional design that do not inhere in the very nature of post-conflict federations. To be
Federalism, devolution and secession 367
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
sure, these were features of the constitution of the Soviet Union, and Roeder generalizes from
the failure of the Soviet Union to argue that multinational federalism will fail more generally.
But it is legitimate to ask whether the same patterns will hold in post-conflict federations that
lack these institutional elements. Roeder himself states that ‘[t]inkering with the institutional
details of different forms of ethnofederalism or autonomy is unlikely to exorcise the demons,
for the devil is to be found in ethnofederalism and autonomy arrangements themselves’
(2009: 207), which suggests that post-conflict federalism will collapse regardless of their
adoption. However, the logic of his account suggests they are necessary for post-conflict
federalism to fail. Moreover, if the presence of these features is necessary for federal failure,
it is not sufficient, because they are also present in some enduring mononational federations.
So Roeder’s critique really turns not on the presence of these political resources but on the
impact of political agendas on their use. At the root of the political dynamics that he describes
are the new political agendas nurtured by post-conflict federalism: in particular, the institu-
tionalization of minority nationalism through the designation of a region as a national minor-
ity’s homeland. Since this new political orientation is precisely the point of post-conflict
federalism, his critique strikes at its very heart.
3.3 Evidence
Both academic camps – those who advocate the use of post-conflict federalism to manage
ethnonational conflict, and those who oppose doing so – support their arguments by reference
to examples of federal success and federal failure. This debate was sparked by the collapse of
the former communist dictatorships of Eastern and Central Europe (ECE) in the early 1990s
(Choudhry 2007). Students of ECE were confronted with a jarring contrast. Three of the
former ECE communist dictatorships – Yugoslavia, the Soviet Union and Czechoslovakia –
had been post-conflict federations prior to the transition to democracy. All three began to
disintegrate within 18 months after embracing democracy. By contrast, unitary states, includ-
ing several with large national minorities (e.g. Poland, Hungary) and some in which nation-
alism served as the axis of internal political conflict, did not fall apart. If the ambition of
post-conflict federalism is to manage competing nation-building projects within a single state,
federalism may in fact have failed to meet its basic objective. Yet the problem went deeper
still. Since only the post-conflict federations broke up, and all of them did, the suspicion was
that federalism had fuelled secession, whereas unitary state structures prevented it. So in
ECE, post-conflict federalism had fuelled precisely those political forces it was designed to
suppress. ECE has been central to the case against post-conflict federalism. Indeed, scholars
who argue that post-conflict federalism inflames ethnonational conflict have tended to be
specialists on ECE who have extended their arguments to indict post-conflict federalism more
The best way to respond to the anti-models of Yugoslavia, Czechoslovakia and the Soviet
Union was to identify models where post-conflict federalism had actually worked. In the liter-
ature, the leading counter-examples are Canada, India and Spain. The founding of the
Canadian federation in 1867 and the creation of Quebec was a direct response to the failure
of the United Province of Canada, a British colony that existed from 1840 to 1867 and that
had two wings: one with a French-speaking majority and one with an English-speaking
majority. Each wing elected equal numbers of representatives to a legislative assembly,
although the largely French-speaking citizens of the former outnumbered the largely English-
368 Comparative constitutional law
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
speaking citizens of the latter. The goal behind the merger and the departure from represen-
tation by population was linguistic assimilation. The English-speaking wing eventually
became more populous and demanded greater representation in the joint legislature, a request
that was resisted by the French-speaking wing, which feared it would be outvoted on matters
important to its linguistic identity. The result was political paralysis. Federalism was the solu-
tion: a compromise that provided representation by population at the federal level, but also
created a Quebec with jurisdiction over those matters crucial to the survival of a French-
speaking society in that province. Had Quebec not been created, it is likely that the French-
speaking parts of Canada would have eventually seceded.
A similar story can be told about India (Choudhry 2009). At independence, India was
organized as a federation. The question that generated intense controversy at the time was
whether provincial boundaries would coincide with linguistic boundaries. India has a dozen
regional languages, spoken in fairly compact linguistic regions. States could easily have been
drawn on linguistic lines. But the Constituent Assembly decided against drawing inter-state
boundaries to coincide with linguistic boundaries, out of a fear that they would fuel seces-
sionist mobilization in India’s border states and doom the country to disintegration. However,
debates over the choice of official language – especially the language of public sector
employment – thrust this issue back onto the constitutional agenda. This process began in the
south, with the creation of Telegu-speaking Andhra Pradesh and Tamil-speaking Tamil Nadu.
Once that precedent was established, it sparked further demands for linguistic states, to which
the central government responded by creating the States Reorganization Commission. The
Commission proposed the redrawing of state boundaries along linguistic lines, and the
process took place during the 1950s and 1960s. The accepted view is that, had this not been
done, India would have come apart. The failure to address a similar dynamic in Pakistan and
Sri Lanka has been a major cause of constitutional failure in those two countries (DeVotta
2004; Ayres 2009).
This academic debate has reached an impasse, largely as a consequence of methodology.
As Dawn Brancati has argued, the use of qualitative case studies are at best ‘useful for gener-
ating interesting ideas about decentralization’ but ‘do not provide strong evidence of their
claims’ (Brancati 2006: 653). The reason is that scholars tend to select cases on the basis of
the dependent variable, with critics studying the failed communist-era federations of ECE,
and advocates analysing the more successful examples. But recent scholarship in compara-
tive politics that employs large-sample quantitative studies holds the potential to advance our
understanding of federalism’s capacity to manage ethnic conflict. Such studies can test
competing empirical claims across a broad variety of cases and identify the factors that
explain when post-conflict federalism succeeds and when it does not.
Three studies warrant discussion.
First, Roeder recently constructed a global database around the notion of the ‘segmented
state’, which he defines as a state that ‘divides its territory and population into separate juris-
dictions, and gives the population that purportedly is indigenous to each jurisdiction a distinct
political status’ (Roeder 2007: 12). In such states, there is a ‘common state’ that possesses
jurisdiction over the entire population and territory, as well as separate ‘segment-states’ that
have jurisdiction over a portion of that territory and people. A segment-state is not merely a
territorial subdivision; it contains ‘peoples who purportedly have special claim to that juris-
diction as a homeland’ (12–13). Roeder observes that, in the twentieth century, 86% of new
states had been segment-states prior to independence, from which he concludes that
Federalism, devolution and secession 369
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
segmented states are far more likely to experience secession than are states that are not
segmented. Although Roeder does not use the language of post-conflict federalism, it clearly
overlaps with his definition of a segmented state. The interesting question Roeder poses is
under what conditions is secession from the segmented state (or post-conflict federation)
more likely. Roeder answers this question by reference to a global data set of segmented
states created before 1990, with annual observations. The independent variables were (a) the
constitutional relationship between the common-state and segment-state, on a spectrum rang-
ing from fully exclusive common-state autocracy to fully inclusive common-state democracy,
and (b) whether the segment-state was self-governing or not. His key finding is that, in anoc-
racies and democracies that excluded the population of segment-states from central gover-
nance, self-government in a segment-state increased the likelihood of secession. Since
self-governing regions are core elements of post-conflict federalism and are designed to
prevent secession, Roeder concludes that the evidence does not support this policy prescrip-
tion and in fact counsels against it.
But Roeder’s conclusion does not follow from his results. One of his most striking find-
ings is that the most stable form of post-conflict federalism is a fully inclusive democracy in
which the regions enjoy extensive forms of self-government. Two comparisons drawn from
his data are important here: (1) inclusive democracies are much more stable than other
regimes when their regions are not self-governing; and (2) unlike exclusionary democracies
and anocracies, inclusive democracies do not suffer an increased risk of secession when their
regions are self-governing. What this suggests is that the rise of secessionist politics might
instead be a function of the structure of politics at the centre. Roeder’s data do not offer an
explanation as to why, but it is possible to speculate. The finding that exclusionary democra-
cies are less stable than inclusive democracies is consistent with theories of minority nation-
alism that explain the rise of minority nationalism as a defensive response to the policies of
the central state, whether characterized as nation-building or as economic, political or cultural
discrimination. It may be that common states have a freer hand to pursue these policies when
they exclude the populations of segment-states from central governance. At a prescriptive
level, this suggests that proponents of post-conflict federalism should not neglect the design
of central institutions. This points to the need for further research on the link between feder-
alism and central power-sharing, as discussed below.
Second, a more recent study by Lars-Erik Cederman and his colleagues supports the
conclusion that federalism can reduce the likelihood of secession (Cederman et al. 2010).
They work from the grievance school of civil war studies. Ethnic political mobilization can
take a variety of forms. One hypothesis they test is that the probability of ethnonationalist
conflict increases with the degree of exclusion from central executive power. To test the rela-
tionship between political exclusion and violent conflict, Cederman et al. constructed the
Ethnic Power Relations data set (EPR), which identified all politically mobilized ethnic
groups and measured their access to state power on an annual basis from 1946 to 2005. They
draw an important set of distinctions between those groups that are excluded from central
power: ‘regional autonomy’ (elites wield local authority within the state, e.g. through federal
arrangements), ‘separatist autonomy’ (elites wield local authority coupled with declaration of
independence), ‘powerless’ (elites excluded from central and local authority without explicit
discrimination) and ‘discrimination’ (elites excluded from central and local authority as a
consequence of deliberate discrimination). Violent conflict is linked to any ethnic group in
whose name an armed group instigated conflict.
370 Comparative constitutional law
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
As anticipated, excluded groups are more likely to instigate violent conflict than those that
are not excluded. But if one disaggregates excluded groups, those that enjoy regional auton-
omy are much less likely to instigate violent conflict than those that experience other forms
of political exclusion. Even more striking is that groups that are excluded from central power
but enjoy regional autonomy are less likely than those groups who are included in power –
either as senior or junior partners – to instigate violent conflict. Although these observations
are based on descriptive statistics and they change somewhat with regression analysis, with
junior partners less likely to rebel than excluded groups that enjoy regional autonomy, the
latter are still less likely to rebel than those that experience more severe forms of political
exclusion, such as the powerless and the targets of discrimination. These results support the
claims of those who argue that post-conflict federalism may operate as a conflict-manage-
ment technique.
A third study takes the literature in a different direction. Federal arrangements may stem
secession in some contexts but fuel it in others. The outcome may be a function of the central
government’s commitment to democratic inclusion but, as Brancati points out, federalism
may fuel secession even in democratic states (Brancati 2009). The question is what additional
factors explain the uneven effects of post-conflict federalism. The answer is to be found in
the electoral strength of regional political parties. If they are strong, they can gain power and
deploy the institutional resources provided by a federal constitutional structure to foster
regional identity and mobilize a national minority around this identity to pursue secession; if
they are weak, this is much less likely to happen. Regression analysis demonstrates that feder-
alism reduces ethnic conflict and secession while controlling for the strength of regional
parties, but that ethnic conflict increases with regional party electoral strength.
Critics of post-conflict federalism would counter that this constitutional arrangement itself
fuels the rise of regional parties. But the evidence is more complex. While post-conflict feder-
alism creates the opportunity for the rise of strong regional parties, they do not emerge in
every post-conflict federation. The question is which other features of constitutional design,
if any, determine whether that potential is realized. Brancati’s principal findings are that
regional parties are stronger (a) where there are more regional legislatures, because they
provide more opportunities for regional parties to wield power; (b) where regional legisla-
tures select the upper house of the central legislature, which increases the impact of regional
parties in central institutions and creates additional incentives to form such parties; and (c)
when national and regional elections occur at different times, which offsets the coat-tails
effect pursuant to which elections to higher office influence the results in concurrent elections
to lower offices.
Taken together, Brancati suggests that, in order to harness the benefits of federalism for
managing ethnic conflict while mitigating its dangers, the focus should not be on federal
design but on regional political parties. This leads to two sets of policy proposals. One
focuses on the rules governing political parties and electoral competition. For example, it
suggests that parties that run in national elections should be required to field candidates in
more than one region in order to win seats. Additional research is required to untangle the
relationship between the electoral system and the rise of regional parties. But the other set of
proposals shifts the focus to the centre, in particular the interaction of central institutions with
regional political processes. Here, the prescriptions appear to point in opposite directions.
Requiring direct elections for the upper chamber would appear to disentangle the central and
regional governments, whereas coordinating the timing of central and regional elections
Federalism, devolution and secession 371
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
would politically connect the two levels of government. However, if adopted as a package,
the two measures should be understood as promoting the autonomy and priority of central
political processes at the expense of the electoral strength of regional parties.
3.4 Future Directions for Research
We highlight and briefly discuss four areas for future research under the aegis of post-conflict
federalism: (1) regional borders; (2) the relationship between federalism and the organization
of central authority; (3) the status and role of local government; and (4) natural resources.
3.4.1 Regional borders
Every state that opts for a federal constitution must decide the number and shape of its
regional governments. This is a topic that has been inadequately researched, but which is of
the highest practical importance. Iraq’s failure to resolve the boundaries of the Kurdistan
region demonstrates how difficult these decisions can be, especially when the memory of
ethnic strife is fresh and valuable resources are at stake (Galbraith 2008; O’Leary 2009).
Donald Horowitz has devoted the most attention to the question of regional boundaries,
and his particular proposals flow from his broader views on constitutional design in ethnically
divided societies (Horowitz 2000). For Horowitz, the political pathology to which constitu-
tional design must respond is the rise of ethnicity as the principal basis of political cleavage.
In polities defined by their ethnic divisions, political competition occurs among ethnic parties
and within ethnic groups, who outbid each other and push politics toward extremism.
Horowitz’s overarching goal is to design constitutions to create incentives for inter-ethnic
cooperation, by empowering ethnic moderates over ethnic radicals. The key is to ‘make
moderation pay’ (Horowitz 1990). His principal focus has been the electoral system. The
mechanism for rewarding moderation is the transfer of votes across ethnic lines, which
Horowitz refers to as ‘vote pooling’ and for which the key mechanism is the alternative vote.
The alternative vote makes moderation pay because it rewards ethnic parties that appeal
across ethnic lines and should offset electoral losses from intra-ethnic competition on the
For Horowitz, regional boundaries should be drawn with the same goals in mind. The lead-
ing case around which he constructs his account is Nigeria, which offers a natural experiment.
Nigeria’s First Republic was a failure; its Second Republic was a success. Horowitz argues
that this difference was a function of the poor design of federalism under the former and good
design under the latter. The First Republic divided Nigeria into three regions, which tracked
the country’s major ethnic divides. Politics within each region was intra-ethnic; politics at the
centre was inter-ethnic. The problem is that the largest ethnic group, the Hausa-Fulani, used
the province in which it constituted the largest group as a base to capture the centre and domi-
nate Nigeria, which ultimately led to civil war and attempted secession. For Horowitz, the
Second Republic solved this problem through a combination of strategies. There were in fact
three key goals: fragmenting the power of the largest group; creating cross-cutting cleavages
through federal design, in order to promote non-ethnic bases for political competition; and
reducing the stakes of losing the battle for power at the centre. The Second Republic pursued
all three goals simultaneously. First, it divided the Hausa-Fulani into multiple states, which
diminished their capacity to capture the centre and created cross-cutting cleavages (e.g. on the
basis of natural resource endowments) that generated new forms of intra-ethnic political
372 Comparative constitutional law
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
competition. Second, it created ethnically heterogeneous states. The new internal boundaries
made allies out of ethnic groups who otherwise would have been competitors. For example,
members of different ethnic groups would unite around their shared material interest as resi-
dents of the same state and then compete economically against people who shared their
ethnicity but happened to live in other states. Third, it created many states in order to multi-
ply the opportunities to wield political power and dispense patronage, which in turn reduced
the relative importance of controlling the centre.
Horowitz’s analysis raises two questions for further research. The first question is whether
his second strategy – the creation of heterogeneous regions that divide and recombine ethnic
groups – coheres with post-conflict federalism. At first glance, they would appear to be incon-
sistent because post-conflict federalism is premised on the belief that relatively homogeneous
regions, in which one ethnic group constitutes a majority, are required to satisfy demands for
self-determination and to relieve the risk of secession. Moreover, comparative experience
suggests that heterogeneous regions may produce political conflict. The leading counter-
example to Nigeria is India, which contained many linguistically heterogeneous states after
independence. These units proved to be very unstable because ethnic groups could not agree
on the choice of official language. The reorganization of Indian states was a direct response
to this political conflict, and resulted in the creation of states that were linguistically homo-
geneous and relatively stable, at least along linguistic fault lines.
The difference between the Nigerian and Indian cases raises a question for further
research. One hypothesis is that different markers of ethnic identity might interact differently
with the demarcation of regions. For example, compare religion and language, two possible
bases of ethnic identification. While a regional government can in principle be neutral with
respect to religion (i.e. not adopt an official religion), it must choose one or a few official
languages in which to conduct legislative affairs, deliver public services, provide education
and administer justice. So if language is the basis for minority nationalism, then the Nigerian
solution might be ill-advised. The emerging large-sample studies are ill-equipped to answer
this question, since they do not appear to differentiate among the different dimensions of
ethnic identification.
The second question raised by Horowitz’s work concerns the design of regions that
contain the ethnic group, if any, that forms a national majority. To date, the scholarship on
post-conflict federalism has largely focused on the design of regions that contain national
minorities and has given relatively minimal attention to the manner in which internal bound-
aries should deal with a dominant ethnic group. Indeed, given its preoccupation with satisfy-
ing the demand for self-determination by national minorities, post-conflict federalism might
appear indifferent to the constitutional structure of the rest of the state. The remainder could
be federal or it could be unitary, in which case the post-conflict federation would be a feder-
acy. However, Henry Hale has demonstrated that this indifference would be a mistake (Hale
2004). Hale observes that post-conflict federations with a dominant ethnic group that is
concentrated in a single region (which he terms a ‘core ethnic region’) are much less stable
than those where that national majority is fractured among different regions. Thus, while
Nigeria (the First Republic), the Soviet Union, Pakistan, Yugoslavia, Czechoslovakia and
Serbia and Montenegro collapsed (some violently), Canada, Switzerland, Spain, the Russian
Federation, Ethiopia and Nigeria (the Second and Third Republics) have or did not.
For Hale, core ethnic regions undermine the stability of post-conflict federations because: (1)
they lead to ‘dual power’ situations where leaders of the core ethnic region have the political
Federalism, devolution and secession 373
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
resources to challenge the legitimacy and authority of the central state to represent the inter-
ests of the dominant ethnic group and thus may threaten the existence of the central govern-
ment by mobilizing members of the ethnic majority to shift their primary political loyalty
from the central government to the core ethnic region; and (2) they fuel the rise of secession
as a defensive response because they diminish the capacity of the centre to make credible
commitments to national minorities, in part because the centre is more likely to exploit those
minorities in an attempt to retain the support of the dominant ethnic group. Conversely, when
a core region is absent, ‘the core group faces high hurdles to collective action that is aimed at
realizing core-group goals within the union state and that can threaten union collapse for the
reasons outlined above’ (Hale 2004: 176). For Hale, this explains the contrasting experiences
of the USSR (which had a core ethnic region and collapsed) and Russia (which lacks a core
ethnic region and has not).
Hale complicates standard accounts of the failure of post-conflict federations. Most critics
of post-conflict federations (e.g. Roeder) blame political mobilization by national minorities
for secession. Although advocates of post-conflict federalism generally do not try to explain
situations of federal failure, if they did they would also likely place great emphasis on the role
of regional governments in mobilizing minority nations. They would likely argue that federal
failure is the consequence of (a) the failure of the centre to respond to the demands of national
minorities for constitutional self-defence with sufficient legislative and fiscal autonomy or (b)
the failure to reduce the demand for secession by inhibiting the rise of regional parties
through electoral engineering. Hale suggests that we ignore the design of the remainder of the
state at our peril. Although it is accepted that central government policies may fuel seces-
sionist mobilization, little thought has been given to how constitutional design may increase
or reduce that risk. Likewise, the link between constitutional design and the ability of the
centre to address and overcome secessionist mobilization once the latter has commenced has
not been sufficiently explored. Finally, the risk that the ethnic majority could abandon the
central state is a new problem for constitutional design. In sum, we should shift our attention
to the impact of the design of regions containing the dominant ethnic group on the ability of
the federal structure to integrate the dominant ethnic group, discriminate against and other-
wise aggravate national minorities, and accommodate those minorities.
3.4.2 Federalism and power-sharing at the centre
There is a long-standing debate over the design of political institutions in ethnically divided
societies. There are two main contending positions, offered by Arend Lijphart and Donald
Horowitz. Lijphart is virtually synonymous with the approach known as consociationalism
(Lijphart 1977; Lijphart 2008). According to consociational theory, the constituent groups of
a divided society can attain a democratic peace by striking a ‘grand bargain’. This bargain
consists of two essential guarantees for each constituent group: (1) power-sharing, which
consists of guaranteed participation in political decision-making; and (2) segmental auton-
omy over matters that affect its distinct identity, such as culture and education. The classic
form of power-sharing institution is a grand coalition cabinet encompassing representatives
of the major ethnic segments. Segmental autonomy may consist of federalism (where territo-
rial boundaries follow ethnic boundaries) or non-territorial federalism (where they do not).
These two core elements can be supplemented by two supporting elements: (3) proportional-
ity (in legislative representation, representation in cabinets, civil service, police, military and
public expenditure) and (4) mutual vetoes on vital interests. Elements of the consociational
374 Comparative constitutional law
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
‘grand bargain’ can be found in a number of post-conflict constitutions, such as Bosnia and
Herzegovina, Ethiopia and Iraq. The second position is Horowitz’s incentives-based
approach, introduced above. In addition to the use of the alternative vote for legislative elec-
tions to encourage inter-ethnic political appeals and a federal system based on heterogeneous
units, Horowitz advocates a strong executive president who would serve a unifying role that
transcends ethnic divides. The procedures for presidential elections should be designed to
ensure support across different ethnic groups. In a state with geographically concentrated
ethnic groups, the solution would be to require a minimum level of support from each group
(as was the case under the Nigerian Second Republic).
This debate is vigorous and we need not repeat it here (for a detailed account, see
Choudhry 2008). What interests us is how Lijphart and Horowitz define the nature of the
problem. Both write against the backdrop of pluralists who ask why political actors who lose
within democratic processes do not respond by turning on the system. This behaviour is
produced by cross-cutting cleavages, a conclusion that supports a competitive model of
democratic politics in which coalitions and majorities shift, political parties compete for
median voters at the ideological centre, and electoral jockeying creates pressures towards
moderation. Parties cycle in and out of power, and no segment of society is permanently
excluded from it. In ethnically divided societies, however, cleavages are mutually reinforcing
and political divisions map onto ethnic divisions. These tendencies lead political parties to
organize themselves along ethnic lines. Political competition does not exist across ethnic
divides. The danger is that national minorities will become perpetual political losers and will
eventually reject the political system instead of continuing to participate in it.
Lijphart and Horowitz are not focused on the specific problems of secession, threats to
territorial integrity and the risk of civil war. This is in part a function of timing: the
Lijphart/Horowitz debate originated a decade before the developments in ECE during the
1990s that prompted this explosion of scholarly interest in minority nationalism. The ques-
tion is whether this long-standing debate should change in light of what we have since learned
about secessionist conflict. Future research should address two issues.
First, post-conflict federalism is a way to create incentives for national minorities to partic-
ipate within the constitutional order, as opposed to repudiating that order and attempting to
secede. It appears to map most closely onto the consociational model. This suggests that
central institutions should be designed to reap the virtues of power-sharing, proportionality
and mutual vetoes. The reason to share power at the centre is to reduce the risk that the central
state will engage in economic, political or cultural discrimination, which in turn will trigger
minority nationalism as a defensive response. Roeder’s finding that, within the set of
segmented states, exclusionary democracies are less stable than inclusive democracies
supports this view. The question that requires further research is how exactly to design the
centre, given the range of possibilities, in order to limit its offensive capacity.
A useful starting point would be the vast literature on the choice between presidential,
semi-presidential and parliamentary forms of government (see e.g. Linz 1990a; Linz 1990b;
Stepan and Skach 1993; Norris 2008). This literature has not yet addressed this basic consti-
tutional choice within post-conflict federations. Moreover, these decisions must be studied
across a large enough number of cases to permit some generalizations. At first blush, a propo-
nent of consociationalism would likely argue for proportional representation and a parlia-
mentary model. If drafters opt for a parliamentary system, they will have to decide whether
and how to regulate the allocation of cabinet positions, including that of the Prime Minister,
Federalism, devolution and secession 375
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
among the regions and other salient social groups. But the apparent conceptual fit between
parliamentary democracy and post-conflict federalism needs to be tested against the alterna-
tives. Recent and emergent post-conflict federations have opted for other arrangements. For
example, in Bosnia and Herzegovina, there is a collective presidency shared by the regional
governments (Banks 2005). At the time of writing, Nepal is on the verge of adopting a strong
version of presidential government, alongside a federal structure designed in part to manage
ethnic conflict. The scope for choice within presidential systems is broad. If the drafters of
the constitution opt for a presidential system, they must decide whether the president will be
chosen by election or by appointment. If the former, they must determine whether a simple
majority will suffice or whether some additional indication of broad regional support will also
be required. If the president is to be appointed, the drafters will need to decide whether (and,
if so, how) the position should rotate among ethnic groups or regional governments. In each
case, they also will need to choose between a single-person presidency and a multi-person
office, as in Bosnia and Herzegovina.
A similar set of questions arises with respect to the design of constitutional courts, which
has been largely ignored in the literature on post-conflict federalism. Literature on classical
federalism amply demonstrates their central role in federal states. The extent to which a
constitution is a credible commitment to thwart exploitation by the centre will turn on the
structure of courts. In particular, the following questions will be important: membership (e.g.
minority nation representation), appointment mechanism (e.g. involvement of regions), panel
composition with respect to federalism disputes, jurisdiction (e.g. direct access by regional
governments) and decision-rules (e.g. majority vs. super-majority vs. minority vetoes).
Second, this line of analysis presupposes that the central problem faced by post-conflict
federalism is the accommodation of national minorities. However, the basic goal of post-
conflict federalism is in fact to reconcile competing nationalisms within the same state. A
significant amount of energy has been devoted to the study of the constitutional arrangements
that would satisfy calls for self-determination by national minorities and dampen demands for
secession. As argued above, this must be supplemented by further study on the design of the
centre. In contrast, relatively little thought has been given to the constitutional arrangements
that would disrupt the development of a statewide nationalism and accordingly diminish the
incentives to centralize authority and transform a federation into a unitary state. This issue is
key to ensuring a stable allocation of authority between the central and regional governments.
Scholars have not yet approached the design of central institutions in post-conflict federations
with this problem in mind.
Hale seems to suggest that this problem may arise only where a core ethnic region
provides the institutional resources to the dominant ethnic group to launch a statewide
nation-building project. Thus, the answer may be to reduce rather than accommodate
demands from the ethnic majority for more influence. However, since his dependent vari-
able is state collapse, he fails to measure the existence of political conflict between compet-
ing nationalisms that does not reach the level of existential constitutional crisis. Post-conflict
federations must integrate both minorities and majorities. The centre must have sufficient
scope for action. That is, the central government must have adequate authority to mollify
incipient statewide nationalism and the decision-rules for exercising that authority must not
frustrate it. The research question is how to reconcile this constitutional agenda with a
counter-agenda that prioritizes the need to protect national minorities from an overreaching
central state..
376 Comparative constitutional law
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
3.4.3 Local government in post-conflict settings
Local government is incidental to classical federalism. Whether explicitly or by default, the
four classical federal constitutions leave the details of local government to the discretion of
regional governments. Their drafters did not foresee the rapid population growth, technolog-
ical innovations and social transformations that concentrated political and economic power in
cities during the twentieth century (Hirschl 2009). In contrast, contemporary scholars of
comparative constitutional law and politics seem increasingly interested in local government
(see e.g. Steytler ed. 2009). However, comparative studies of its role in post-conflict envi-
ronments remain scarce (Jackson and Scott 2007). The studies that do exist rely on anecdotal
evidence and assumptions, such as the vital importance of local government in delivering
basic public goods and services (e.g. water, roads and sewers) that demonstrate state capac-
ity and build state legitimacy, but may have little basis in experience.
Framers of post-conflict constitutions face a knot of procedural, formal and substantive
questions about local government. They must decide whether, and if so how, to include local
governments in the processes by which the constitution is drafted, ratified and implemented.
They must decide whether, and if so how, to recognize those governments in the resulting
document: as a third order of government equivalent to the central and regional governments,
as a matter left to the discretion of the regional governments or as some sort of hybrid, as in
India where the states are obligated to establish local governments with specific structures but
allowed to choose which powers to devolve in order to facilitate self-government (Mathew
and Hooja 2009). They must decide which level of government is responsible for demarcat-
ing the boundaries of local governments, whether to entrench any rules regarding their
finances, how to assuage the strategic concerns of regional governments and the manner, if
any, in which local governments will be represented at the centre. This list of issues is only a
partial one, but the challenge is clear.
In general, we need more empirical evidence of the nature and operation of local govern-
ment across various post-conflict environments. But, since the two issues traditionally asso-
ciated with local government are democracy and development, we especially need to know
more about how local government can best serve these goals in such circumstances. Since
local governments are usually tasked with routine matters, they may seem to promise a depar-
ture from divisive ethnic politics in favour of a pragmatic, non-partisan approach that focuses
on solving common local problems (Steytler 2007). However, a recent qualitative survey of
12 federal states, some of which are ethnically divided and some of which are not, suggests
that national parties tend to dominate local politics (Steytler 2009). As noted above, Brancati
has observed a connection between the strength of regional parties and the risk of a post-
conflict federation succumbing to secession. It may be worthwhile to examine the relation-
ships between institutional design, party affiliation and political outcomes at each of the
central, regional and local levels in order to identify the conditions under which local govern-
ments might serve not only as effective providers of public goods but also as counterweights
to secessionist tendencies in regional governments. For example, a comparative analysis of
the local elements of comprehensive power-sharing arrangements and their ability to defuse
ethnic tensions in an urban setting would complement the available case studies and perhaps
provide valuable guidance (see e.g. Bieber 2005).
An alternative would be to consider which political practices and legal mechanisms might
make constitutional commitments to local governments more credible. The responsibilities of
local governments regularly exceed their fiscal resources, especially in societies that are both
Federalism, devolution and secession 377
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
divided and developing. They depend on financial transfers from the other levels of govern-
ments in order to even attempt to fulfil their obligations. But in post-conflict states, government
revenues are often depleted by violence and diverted by ongoing ethnic competition for politi-
cal and economic rents. In Nigeria, for example, the financial transfers envisioned by the consti-
tution are diverted by opaque accounting practices, corruption and other pathologies (Galadima
2009). If local governments in such states lack a reliable resource base, they may be unable to
meet the basic needs of their constituents. This failure to meet even minimal expectations may
generate resentment towards a particular party or level of government or perhaps even under-
mine support for the entire post-conflict constitutional settlement (Manning 2003; Harvard Law
Review Note 2008). Thus, development is linked with democracy, at least at the local level.
Studies, whether qualitative or quantitative, that examine the institutional aspects of this rela-
tionship may make a significant contribution to post-conflict federalism.
3.4.4 Natural resources and post-conflict settings
In recent years, natural resources have provided a rich seam for scholars of civil war, who
have explored a range of issues relevant to post-conflict constitutional design. They have used
comprehensive data sets to distinguish not only different resources, such as oil, diamonds and
drugs, but also different forms of the same resource, such as offshore and onshore oil or
mined and alluvial diamonds, and different types of conflict, from ethnic groups seeking
regional autonomy to military factions seeking control of the central state (Ross 2006;
Buhaug 2006). They have developed sophisticated statistical models to isolate the effects of
these resources on the initiation, duration and severity of such conflicts (Ross 2004; Lajala
2009). They also have tested multiple causal mechanisms by which these resources may spark
and sustain conflict: some propose that the exploitation and degradation of traditional terri-
tory exacerbates grievances among a national minority; others suggest that a state weakened
by its dependence on resource revenues presents an easy and valuable target; others still posit
that lootable resources entice and enable rebel groups to extend their campaigns against the
state (e.g. Ross 2004; Collier and Hoeffler 2004; Fearon 2005). As these scholars have paid
relatively little attention to the institutional structure of those states that experience and avoid
such conflicts, both fields could gain from being brought together (see e.g. Aspinall 2007).
The primary task of a post-conflict constitution is to contain violent conflict. Natural
resources complicate this task. Although they often fuel conflict, they can also be used to
finance peace. The more that constitutional scholars and framers know about the physical,
historical and institutional circumstances under which certain resources are likely to inflame
certain conflicts, the more effective and viable their constitutional designs will become. The
new civil war scholarship could help them to diagnose the particular challenges they face,
since oil reserves in the remote traditional territory of a large ethnic minority pose a different
set of problems and possibilities than do contraband crops that thrive across an accessible and
ethnically heterogeneous region (Lajala 2009). The former promise more substantial and
legitimate revenues but require much larger investments to extract and export. However,
scholars disagree on whether (and, if so, how, why and the extent to which) such deposits
increase the likelihood, length and intensity of violent conflict, secessionist or otherwise (e.g.
Walter 2006; Ross 2006; Lajala 2009). Similar debates surround drugs, diamonds and other
resources that are relatively easy to collect. While post-conflict constitutional design might
benefit from greater attention to civil war scholarship, any such benefit will depend on the
scope and quality of consensus those scholars ultimately obtain.
378 Comparative constitutional law
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
In the meantime, we can try to learn from those post-conflict federal systems that have
managed, however scarcely or briefly, to turn natural resources from an obstacle into a plat-
form for peace. To have any chance of success, a post-conflict constitution must define a
peace that the parties find both plausible and more desirable than war. When natural resources
are involved, the appeal of a constitutional settlement is likely to depend on whether they
perceive it as more profitable than conflict (Wimmer 2004; Wennmann 2009). The value of
any such settlement, including a federal one, depends on its content and its credibility.
For example, many post-conflict federal constitutions distinguish between the ownership
of a natural resource, the management of that resource and the collection and distribution of
revenues from it. By assigning these various facets of natural resources to different actors in
the new constitutional order, parties in divided societies like Iraq and Sudan have been able
to isolate contentious political issues (e.g. ownership of oil deposits) from relatively uncon-
troversial technical matters that are more relevant to attracting investment, expanding produc-
tion and generating wealth (e.g. management and revenue collection). If successful, this
approach enables post-conflict federal states to increase the total amount of resource revenues
extracted and to share those revenues in a manner that reinforces the former combatants’
commitment to the new constitution (Hayson and Kane 2009).
Success may begin with creative constitutional text, but poor implementation will derail
even the most ingenious legal compromise. For example, under the Nigerian Constitution, the
federal government is responsible for collecting and pooling all oil revenues for distribution
among federal, state and local governments. The constitution mandates a minimum 13%
share for the oil-bearing states, which are largely concentrated in the Niger Delta and popu-
lated by relatively small ethnic groups, but otherwise leaves the distribution formula to be
determined by a federal statute (Suberu 2009). This approach is not only subverted by poor
governance, as noted above; it is also considered inadequate by many residents of the Delta
states, some of whom have engaged in organized violence and sabotage against both the
government and the oil industry. The Iraqi Constitution provides a newer and perhaps less
familiar example. It grants the federal, regional and governorate governments concurrent
authority to manage the country’s oil reserves but does not specify the procedures by which
they will make these decisions (Hayson and Kane 2009). In light of such cases, it might be
useful to look past the relevant constitutional language and research the legislative, political
and administrative steps taken to make these provisions work. By comparing such measures
and their results, we might learn more about the circumstances in which different provisions
do (or do not) produce the intended effects.
Another feature of post-conflict federal constitutions that relates to natural resources and
warrants further inquiry is the use of scheduled referendums on regional autonomy. Although
these mechanisms take different forms and promise different degrees of autonomy, they
perform a similar function: they encourage national minorities whose traditional territory
contains valuable oil deposits to support the federal project by increasing their control over
the terms on which they participate. The 2005 Iraqi Constitution, for example, obligates the
federal government to conduct a referendum in the city of Kirkuk and other disputed territo-
ries to determine whether they should join the Kurdistan Region (McGarry and O’Leary
2008). The deadline for this vote was 31 December 2007, but just as the government failed
to fulfil its constitutional obligations to resettle residents of those territories displaced by the
prior regime, compensate them where appropriate and conduct a census in the area, it has
failed to meet this deadline and numerous negotiated extensions. In contrast, the
Federalism, devolution and secession 379
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
Comprehensive Peace Agreement that preserves the tense relationship between the govern-
ments of north and south Sudan promises the latter, which sits atop most of the country’s oil
reserves, a referendum on independence by the end of January 2011. Given the uncertain
political situation in Sudan, doubts persist as to whether this vote will be held, whether it will
be free and fair, and whether, if successful, the north will allow the south to secede without
a fight (Wennmann 2009).
Such arrangements may be understood as attempts to increase the credibility of their
respective constitutional packages. National minorities that control territory endowed with
valuable natural resources may have reason to distrust, and thus to reject, agreements with a
central government. In theory, the central government likely will face severe economic and
political pressure to renege on any promise of autonomy and assert greater influence over
those resources, especially if members of other ethnic groups also reside in the contested
region (Fearon 2004; Ross 2004). By granting such regions the option to exit (or, in the case
of Kirkuk, to join the region of Iraq most capable of demanding additional concessions and
eventually obtaining independence) at a specified date in the near future, these provisions
may reduce the cost of committing to such an agreement and thus make peace more proba-
ble. In turn, and again in theory, the constitutional option to exit or form a larger and more
self-sufficient region may create incentives for the central government and other ethnic
groups to refrain from exploiting or otherwise antagonizing these national minorities.
However, if central governments do face such strong pressures to renege on promises made
to resource-rich minorities, it is unclear why vulnerable minorities would trust the promise to
hold and respect a referendum on secession or amalgamation more than the initial promise of
autonomy. Without additional research, it is unclear whether, and if so how, such provisions
make a post-conflict federal constitution more credible. As a result, it might be worthwhile to
compare the origins and outcomes of these provisions to determine why they appeal to
national minorities and the conditions, if any, under which they can be implemented effec-
We hope that the idea of post-conflict federalism will promote critical constitutional scholar-
ship. The familiar conception of classical federalism has fuelled important debates about
essential elements of the most stable and successful federal systems. But lessons drawn from
states like Australia and the USA often do not apply to more volatile conditions, such as those
facing states seeking to recover from ethnic conflict. Post-conflict states must solve a very
different set of constitutional problems, and in deciding whether and how to implement feder-
alism they must respond to a very different set of challenges. At the very least, such analyses
will remind us that even the most common ideas and institutions have a particular prove-
nance, so they may be less relevant or useful in other contexts. On a more abstract level, by
positing that the experiences of post-conflict federal states can support a coherent conception
of federalism distinct from that fostered by the experiences of the first wave of federal states,
post-conflict federalism offers a new perspective on basic questions like ‘what is federalism?’
and even ‘what is a constitution?’. Finally, this brief sketch of post-conflict federalism
suggests yet another promising avenue for inquiry. Many of the issues central to classical
federalism, such as the division of powers, the role of courts and the development of a
380 Comparative constitutional law
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
common market, receive little or no attention in scholarship about post-conflict federalism.
Even if these issues prove less relevant in post-conflict environments, it will be helpful to
know how and why.
Amar, Akhil Reed (1991), ‘Some New World Lessons for the Old World’, University of Chicago Law Review, 58:
Aroney, Nicholas (2006), ‘Formation, Representation and Amendment in Federal Constitutions’, American Journal
of Comparative Law, 54: 277–336.
Aspinall, Edward (2007), ‘The Construction of Grievance: Natural Resources and Identity in a Separatist Conflict’,
Journal of Conflict Resolution, 51: 950–72.
Ayres, Alyssa (2009), Speaking like a State: Language and Nationalism in Pakistan, Cambridge: Cambridge
University Press.
Banks, Angela M. (2005), ‘Moderating Politics in Post-conflict States: An Examination of Bosnia and Herzegovina’,
UCLA Journal of International Law and Foreign Affairs, 10: 1–65.
Baylis, Elena A. (2004), ‘Beyond Rights: Legal Process and Ethnic Conflicts’, Michigan Journal of International
Law, 25: 529–604.
Bermeo, Nancy (2002), ‘The Import of Institutions’, Journal of Democracy, 13: 96–110.
Bieber, Florian (2005), ‘Local Institutional Engineering: A Tale of Two Cities, Mostar and Brcˇko’, International
Peacekeeping, 12: 420–33.
Brancati, Dawn (2006), ‘Decentralization Fueling the Fire or Dampening the Flames of Ethnic Conflict and
Secessionism’, International Organization, 60: 651–85.
Brancati, Dawn (2009), Peace by Design: Managing Intrastate Conflict through Decentralization, Oxford: Oxford
University Press.
Briffault, Richard (1994), ‘ “What about the ‘ism’?” Normative and Formal Concerns in Contemporary Federalism’,
Vanderbilt Law Review, 47: 1303–53.
Brubaker, Rogers (1996), Nationalism Reframed: Nationhood and the National Question in the New Europe,
Cambridge: Cambridge University Press.
Buhaug, Halvard (2006), ‘Relative Capability and Rebel Objective in Civil War’, Journal of Peace Research, 46:
Bunce, Valerie (1999), Subversive Institutions: The Design and the Destruction of Socialism and the State,
Cambridge: Cambridge University Press.
Cederman, Lars-Erik, Andreas Wimmer and Brian Min (2010), ‘Why Do Ethnic Groups Rebel? New Data and
Analysis’, World Politics, 62: 87–119.
Choudhry, Sujit (2007), ‘Does the World Need More Canada? The Politics of the Canadian Model in Constitutional
Politics and Political Theory’, International Journal of Constitutional Law, 5: 606–38.
Choudhry, Sujit (2008), ‘Bridging Comparative Politics and Comparative Constitutional Law: Constitutional Design
in Divided Societies’, in Sujit Choudhry (ed.), Constitutional Design for Divided Societies: Integration or
Accommodation?, Oxford: Oxford University Press, pp. 3–40.
Choudhry, Sujit (2009), ‘Managing Linguistic Nationalism through Constitutional Design: Lessons from South
Asia’, International Journal of Constitutional Law, 7: 553–76.
Collier, Paul and Anke Hoeffler (2004), ‘Greed and Grievance in Civil War’, Oxford Economic Papers, 56: 563–95.
Crawford, Beverly (1998), ‘Explaining Cultural Conflict in Ex-Yugoslavia: Institutional Weakness, Economic
Crisis, and Identity Politics’, in Beverly Crawford and Ronnie D. Lipschutz (eds.), The Myth of Ethnic Conflict,
Berkeley: International and Area Studies, pp. 3–43.
Cross, Frank B. (2002), ‘The Folly of Federalism’, Cardozo Law Review, 24: 1–59.
Daniels, Ronald J. (1991), ‘Should Provinces Compete? The Case for a Competitive Corporate Law Market’, McGill
Law Journal, 36: 130–90.
Deakin, Simon (2006), ‘Legal Diversity and Regulatory Competition: Which Model for Europe?’, European Law
Journal, 12: 440–54.
DeVotta, Neil (2004), Blowback: Linguistic Nationalism, Institutional Decay, and Ethnic Conflict in Sri Lanka,
Stanford, CA: Stanford University Press.
Elazar, Daniel (1987), Exploring Federalism, Tuscaloosa: The University of Alabama Press.
Erk, Jan and Lawrence Anderson (2009), ‘The Paradox of Federalism: Does Self-rule Accommodate or Exacerbate
Ethnic Divisions?’, Regional & Federal Studies, 19: 191–202.
Esty, Daniel C. (1996), ‘Revitalizing Environmental Federalism’, Michigan Law Review, 95: 570–653.
Farber, Daniel A. (1997), ‘Environmental Federalism in a Global Economy’, Virginia Law Review, 83: 1283–319.
Federalism, devolution and secession 381
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
Fearon, James D. (2004), ‘Why Do Some Civil Wars Last so Much Longer than Others?’, Journal of Peace
Research, 41: 275–301.
Fearon, James D. (2005), ‘Primary Commodity Exports and Civil War’, The Journal of Conflict Resolution, 49:
Feeley, Malcolm M. and Edward Rubin (2008), Federalism, Ann Arbor: The University of Michigan Press.
Figueiredo Jr., Rui J.P. de, Michael McFaul and Barry R. Weingast (2007), ‘Constructing Self-Enforcing Federalism
in the Early United States and Modern Russia’, Publius, 37: 160–89.
Friedman, Barry (1997), ‘Valuing Federalism’, Minnesota Law Review, 82: 317–412.
Galadima, Habu (2009), ‘Federal Republic of Nigeria’, in Nico Steytler (ed.), Local Government and Metropolitan
Regions in Federal Systems, A Global Dialogue on Federalism: Volume 6, Montreal: McGill-Queen’s University
Press, pp. 234–66.
Galbraith, Peter W. (2008), Unintended Consequences: How War in Iraq Strengthened America’s Enemies, New
York: Simon & Schuster.
Ghai, Yash (2000), ‘Ethnicity and Autonomy: A Framework for Analysis’, in Yash Ghai (ed.), Autonomy and
Ethnicity: Negotiating Competing Claims in Multi-Ethnic States, Cambridge: Cambridge University Press, pp.
Griffiths, Ann L. (ed.) (2005), Handbook of Federal Countries, Montreal: McGill-Queen’s University Press.
Grindle, Merilee S. (2009), Going Local: Decentralization, Democratization, and the Promise of Good Governance,
Princeton: Princeton University Press.
Gurr, Ted Robert (1993), Minorities at Risk: A Global View of Ethnopolitical Conflicts, Washington: United States
Institute of Peace Press.
Gurr, Ted Robert (2000), Peoples versus States: Minorities at Risk in the New Century, Washington: United States
Institute of Peace Press.
Halberstam, Daniel (2001), ‘Comparative Federalism and the Issue of Commandeering’, in Kalypso Nicolaidis and
Robert Howse (eds.), The Federal Vision: Legitimacy and Levels of Governance in the United States and the
European Union, Oxford: Oxford University Press, pp. 213–51.
Halberstam, Daniel (2004), ‘Of Power and Responsibility: The Political Morality of Federal Systems’, Virginia Law
Review, 90: 731–834.
Halberstam, Daniel (2008), ‘Comparative Federalism and the Role of the Judiciary’, in Keith E. Whittington, R.
Daniel Keleman and Gregory A. Caldeira (eds.), The Oxford Handbook of Law and Politics, Oxford: Oxford
University Press, pp. 142–64.
Halberstam, Daniel and Mathias Reimann (forthcoming), ‘Federalism and Legal Unification: A Comparative
Empirical Examination of 20 Systems’.
Hale, Henry (2004), ‘Divided we Stand: Institutional Sources of Ethnofederal State Survival and Collapse’, World
Politics, 56: 165–93.
Hale, Henry E. (2008), ‘The Double-edged Sword of Ethnofederalism: Ukraine and the USSR in Comparative
Perspective’, Comparative Politics, 40: 293–312.
Harvard Law Review Note (2008), ‘Counterinsurgency and Constitutional Design’, Harvard Law Review, 121:
Hayson, Nicholas and Sean Kane (2009), ‘Negotiating Natural Resources for Peace: Ownership, Control and
Wealth-Sharing’, Center for Humanitarian Briefing Paper, available at:
Hirschl, Ran (2009), ‘The “Design Sciences” and Constitutional “Success” ’, Texas Law Review, 87: 1339–74.
Horowitz, Donald (1990), ‘Making Moderation Pay: The Comparative Politics of Ethnic Conflict Management’, in
Joseph V. Montville (ed.), Conflict and Peacemaking in Multiethnic Societies, Lexington: Lexington Books, pp.
Horowitz, Donald L. (2000), Ethnic Groups in Conflict, 2nd edition, Berkeley: University of California Press.
Hume, Nathan (2006), ‘Four Flaws: Reflections on the Canadian Approach to Private International Law’, Canadian
Yearbook of International Law, 44: 161–248.
Jackson, Paul and Zoe Scott (2007), ‘Local Government in Post-conflict Environments’, United Nations
Development Programme Commissioned Paper, available at:
Jackson, Vicki C. (2004), ‘Comparative Constitutional Federalism and Transnational Judicial Discourse’,
International Journal of Constitutional Law, 2: 91–138.
Kimber, Clíona J. M. (1995), ‘A Comparison of Environmental Federalism in the United States and the European
Union’, Maryland Law Review, 54: 1658–90.
Kincaid, John and G. Alan Tarr (eds.) (2005), Constitutional Origins, Structure and Change in Federal Countries,
Montreal: McGill-Queen’s University Press.
Kymlicka, Will (1995), Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford: Clarendon Press.
Kymlicka, Will (1998), ‘Is Federalism a Viable Alternative to Secession?’, in Percy Blanchemains Lehning (ed.),
Theories of Secession, London: Routledge, pp. 111–50.
382 Comparative constitutional law
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
Kymlicka, Will (2001), Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship, Oxford: Oxford
University Press.
Kymlicka, Will (2007), Multicultural Odysseys: Navigating the New International Politics of Diversity, Oxford:
Oxford University Press.
Lajala, Paivi (2009), ‘Deadly Combat over Natural Resources: Gems, Petroleum, Drugs, and the Severity of Armed
Civil Conflict’, Journal of Conflict Resolution, 53: 50–71.
Leff, Carol Skalnik (1999), ‘Democratization and Disintegration in Multinational States: The Breakup of the
Communist Federations’, World Politics, 51: 205–35.
Levy, Jacob T. (2007), ‘Federalism, Liberalism, and the Separation of Loyalties’, American Political Science
Review, 101: 459–77.
Lijphart, Arend (1977), Democracy in Plural Societies: A Comparative Exploration, New Haven: Yale University
Lijphart, Arend (2008), Thinking about Democracy: Power Sharing and Majority Rule in Theory and Practice, New
York: Routledge.
Linz, Juan J. (1990a), ‘The Perils of Presidentialism’, Journal of Democracy, 1: 51–69.
Linz, Juan J. (1990b), ‘The Virtues of Parliamentarism’, Journal of Democracy, 1: 84–91.
Madison, James, Alexander Hamilton and John Jay (1788/1987) The Federalist Papers, London: Penguin.
Majeed, Akhtar, Ronald L. Watts and Douglas M. Brown (eds.) (2006), Distribution of Powers and Responsibilities
in Federal Countries, Montreal: McGill-Queen’s University Press.
Manning, Carrie (2003), ‘Local Level Challenges to Post-conflict Peacebuilding’, International Peacekeeping, 10:
Mathew, George and Rakesh Hooja (2009), ‘Republic of India’, in Nico Steytler (ed.), Local Government and
Metropolitan Regions in Federal Systems: A Global Dialogue on Federalism: Volume 6, Montreal: McGill-
Queen’s University Press, pp. 166–99.
McCahery, Joseph A. and Erik P. M. Vermeulen (2005), ‘Does the European Company Prevent the “Delaware
Effect”?’, European Law Journal, 11: 785–801.
McGarry, John and Brendan O’Leary (2008), ‘Iraq’s Constitution of 2005: Liberal Consociation as Liberal
Prescription’, in Sujit Choudhry (ed.), Constitutional Design for Divided Societies: Integration or
Accommodation?, Oxford: Oxford University Press, pp. 342–68.
McGarry, John and Brendan O’Leary (2009), ‘Must Pluri-national Federations Fail?’, Ethnopolitics, 8: 5–25.
Mendez, Fernando (2005), ‘The European Union and Cybercrime: Insights from Comparative Federalism’, Journal
of European Public Policy, 12: 509–27.
Merritt, Deborah Jones (1988), ‘The Guarantee Clause and State Autonomy: Federalism for a Third Century’,
Columbia Law Review, 88: 1–78.
Nicolaidis, Kalypso and Robert Howse (eds.) (2001), The Federal Vision: Legitimacy and Levels of Governance in
the United States and the European Union, Oxford: Oxford University Press.
Norris, Pippa (2008), Driving Democracy: Do Power-Sharing Institutions Work?, Cambridge: Cambridge
University Press.
O’Leary, Brendan (2009), How to Get Out of Iraq with Integrity, Philadelphia: University of Pennsylvania Press.
Parikh, Sunita and Barry R. Weingast (1997), ‘A Comparative Theory of Federalism: India’, Virginia Law Review,
83: 1593–615.
Revesz, Richard L. (1996), ‘Federalism and Interstate Environmental Externalities’, University of Pennsylvania Law
Review, 144: 2341–416.
Revesz, Richard L. (2001), ‘Federalism and Environmental Regulation: A Public Choice Analysis’, Harvard Law
Review, 115: 553–641.
Riker, William (1964), Federalism: Origin, Operation, Significance, Boston: Little, Brown.
Riker, William (1975), ‘Federalism’, in Fred I. Greenstein and Nelson W. Polsby (eds.), Handbook of Political
Science: Governmental Institutions and Processes, Reading: Addison-Wesley, pp. 93–172.
Roeder, Philip G. (2007), Where Nation-states Come from: Institutional Change in the Age of Nationalism,
Princeton: Princeton University Press.
Roeder, Philip G. (2009), ‘Ethnofederalism and the Mismanagement of Conflicting Nationalisms’, Regional &
Federal Studies, 19: 203–19.
Ross, Michael (2004), ‘How Do Natural Resources Influence Civil War? Evidence from Thirteen Cases’,
International Organization, 58: 35–67.
Ross, Michael (2006), ‘A Closer Look at Oil, Diamonds, and Civil War’, Annual Review of Political Science, 9:
Shapiro, David L. (1995), Federalism: A Dialogue, Evanston: Northwestern University Press.
Simeon, Richard and Daniel-Patrick Conway (2001), ‘Federalism and the Management of Conflict in Multinational
Societies’, in Alain-G. Gagnon and James Tully (eds.), Multinational Democracies, Cambridge: Cambridge
University Press, pp. 338–65.
Stepan, Alfred (1999), ‘Federalism and Democracy: Beyond the US Model’, Journal of Democracy, 10: 19–34.
Federalism, devolution and secession 383
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
Stepan, Alfred (2001), Arguing Comparative Politics, Oxford: Oxford University Press.
Stepan, Alfred and Cindy Skach (1993), ‘Constitutional Frameworks and Democratic Consolidation:
Parliamentarism versus Presidentialism’, World Politics, 46: 1–22.
Stewart, Richard (1977), ‘Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of
National Environmental Policy’, Yale Law Journal, 86: 1196–272.
Steytler, Nico (2007), ‘Comparative Reflections on Local Government and Metropolitan Regions in Federal
Systems’, in Raoul Blindenbacher and Chandra Pasma (eds.), Dialogues on Local Government and Metropolitan
Regions in Federal Countries, Montreal: McGill-Queen’s University Press, pp. 3–8.
Steytler, Nico (2009), ‘Comparative Conclusions’, in Nico Steytler (ed.), Local Government and Metropolitan
Regions in Federal Systems: A Global Dialogue on Federalism: Volume 6, Montreal: McGill-Queen’s University
Press, pp. 393–436.
Steytler, Nico (ed.) (2009), Local Government and Metropolitan Regions in Federal Systems: A Global Dialogue on
Federalism: Volume 6, Montreal: McGill-Queen’s University Press.
Stith, Clark D. (1991), ‘Federalism and Company Law: A “Race to the Bottom” in the European Community’,
Georgetown Law Journal, 79: 1581–618.
Suberu, Rotimi (2009), ‘Federalism in Africa: The Nigerian Experience in Comparative Perspective’, Ethnopolitics,
8: 67–86.
Tiebout, Charles M. (1956), ‘A Pure Theory of Local Expenditures’, The Journal of Political Economy, 64: 416–24.
Toft, Monica Duffy (2003), The Geography of Ethnic Violence: Identity, Interests and the Indivisibility of Territory,
Princeton: Princeton University Press.
Walter, Barbara F. (2006), ‘Information, Uncertainty, and the Decision to Secede’, International Organization, 60:
Walter, Barbara F. (2009), Reputation and Civil Wars: Why Separatist Conflicts are so Violent, Cambridge:
Cambridge University Press.
Watts, Ronald L. (1966), New Federations: Experiments in the Commonwealth, Oxford: Clarendon Press.
Watts, Ronald L. (1998), ‘Federalism, Federal Political Systems and Federations’, Annual Review of Political
Science, 1: 117–37.
Watts, Ronald L. (2008), Comparing Federal Systems, 3rd edition, Montreal: McGill-Queen’s University Press.
Weingast, Barry (1995), ‘The Economic Role of Political Institutions: Market-preserving Federalism and Economic
Development’, The Journal of Law, Economics, & Organization, 11: 1–31.
Wennmann, Achim (2009), ‘Wealth Sharing beyond 2011: Economic Issues in Sudan’s North-South Peace Process’,
Centre of Conflict, Development and Peacebuilding, available at:
Wheare, K.C. (1964), Federal Government, 4th edition, New York: Oxford University Press.
Wimmer, Andreas (2004), ‘Toward a New Realism’, in Andreas Wimmer, Richard J. Goldstone, Donald L.
Horowitz, Ulrike Joras and Conrad Schetter (eds.), Facing Ethnic Conflicts: Toward a New Realism, Lanham:
Rowman & Littlefield, pp. 333–59.
Wolff, Stefan (2009), ‘Complex Power-sharing and the Centrality of Territorial Self-governance in Contemporary
Conflict Settlements’, Ethnopolitics, 8: 27–45.
384 Comparative constitutional law
Tom Ginsburg and Rosalind Dixon - 9781848445390
Downloaded from Elgar Online at 01/26/2017 10:00:06PM
via University of California, Berkeley, Law Library
... 52 The footnote used to support this claim refers to one scholarly article on federalism. 53 The handbook itself offers the choice between geography and economics as opposed to history and group identity as if these are discrete categories that can be evaluated in relation to one another to determine de-contextualized, de-historicized best practice. The limits of this either/or approach are not discussed, and the language itself suggests that categories of historical or group identity are unlikely to "become matters of contention." ...
To date, the study of federalism in comparative constitutional law has been subject to considerable discussion. In particular, investigating how federalism can be explored as a device for managing internal conflicts is a continuing concern within this field. Equally important, federalism studies have gradually gained importance in international public law due to potential consequences for the territorial integrity of the state linked to the right to self-determination and right to secession. However, there is an existing and growing gap between traditional and contemporary theoretical understandings about federal devices used to address autonomy claims and ultimately accommodate internal conflicts. In contrast to the earlier theoretical framework, contemporary research in federalism recognizes that federal relationships are dynamic. Importantly, distinctive identity markers have been of crucial importance in processes of fragmentation which lead to the establishment of intermediary tiers of government and ultimately to constitutional asymmetries. The theoretical split that has dominated the field of federalism studies reflects on two important aspects linked to constitutional asymmetries: firstly, the use of constitutional asymmetry as a federal device in conflict accommodation and secondly, the understanding of stability. Unlike the traditional federal approach, the contemporary federal perspective remains open for discussing the application of constitutional asymmetries as a tool ensuring the stability of the system as well as for the dynamic interpretation of stability to respond to contemporary challenges. Drawing upon two strands of research, this contribution attempts to transform the narratives about understanding constitutional asymmetry as a federal device. To that end, the contribution explores: first, the theoretical split between traditional and contemporary federal theory; second, perspectives about using constitutional asymmetry in conflict accommodation; and third, its effects on the stability of the constitutional system.
Full-text available
Chapter title: Palestinian Nationality and "Jewish" Nationality: From the Lausanne Treaty to Today. The central premise of the chapter is that applying international nationality law to the conflict over territorial claims confirms that Palestinians possess a defined nationality that remains valid and legally cognizable today. As a legal matter, Palestinian nationality is not negated by the claim of a Jewish state in Israel, or by an extraterritorial claim to Israel by Jews elsewhere in the world. In order to understand the difference between Israeli, Jewish and Palestinian national status, it is critical to appreciate that the international law of nationality operates to protect a fundamental connection between peoples and their lands of origin—it is the territorial and direct ‘bloodline’ connection, not a religious connection, that determines national rights. This chapter analyzes the key norms of international nationality law, and applies them to the relevant legal instruments affecting the conflict over rights to territory in Palestine. It examines not only the application of the norms to this conflict, but also how (and whether) instruments such as the British Mandate, the Balfour Declaration and the main relevant United Nations Resolutions affected the claims of Jews and those of Palestinians to national status in the territory. In essence, this short excursus into the legal and historical background to the conflicting claims of self-determination to and in Palestine illustrates how ‘getting the law right’ paves the way for a different and more equitable shared future in the same land for Jews and Palestinians living there, and those who have the right to return there.
Although secession has been the subject of much scholarly work, the focus has largely been on the external dimension of secession, the decision of a territory to leave an existing state and establish itself as independent state. Little attention has been provided to the less radical solution of internal secession, the right of a community or territory to secede from a subnational unit and establish its own unit. The Ethiopian constitution is probably the only constitution that provides for internal secession as a constitutional right. It also provides for a procedure according to which the right to internal secession can be exercised. Focusing on the Ethiopian experience, this chapter discusses the law and politics of internal secession in a comparative perspective. It examines the grounds that may justify internal secession and the procedure that must govern a request for internal secession. It also discusses the role and powers of the national government and the subnational unit from which the territory is seeking to secede. It reflects on whether internal secession should be a unilateral affair or an outcome of a negotiation.
Most studies in territorial governance seem to disregard the importance of the link between territory and identity. Meanwhile, this link is connected to territorial conflicts based on identity differences. Evident from the example of Bosnia and Herzegovina (B&H), identity-based territorial conflicts can generate identity-based territorial reconfiguration of the country. After the Bosnian War, B&H became a multilevel system consisting of two entities, ten cantons, and one district. Each entity and canton has its constitution while the district has a statute. The constitutional system rests on three constituent peoples who often act as decentralising and centralising forces. This chapter aims to explore the interplay between sub-national constitutionalism and ethno-territorial politics using B&H as an example. The chapter examines the association between territory and identity and investigates the link between sub-national constitutionalism and ethno-territorial delineation.
In Belgium, federalism provides a structure in which consociationalism is able to persist by committing citizens to their respective language groups. This chapter explains how it is diversity that inspires power-sharing at the center, but a quest for homogeneity that explains the boundaries of the constituent units and the basic principles of autonomy, equality and exclusivity in the federal state structure. The chapter also demonstrates how dyadic multinational federalism makes for a fragile structure with increasing decentralizing dynamics that remove the basis for consociational governance. The result is a specific model of consensus democracy that keeps Belgium viable, at the cost of complexity, but with mechanisms that gradually destroy collaborative and cohesive capacity. It seems that more cohesive instruments are essential to keep the Belgian state from dissolving.
This chapter traces the interconnections between three different types of power-sharing that inform politics in Austria: consociationalism, corporatism and federalism. After the Second World War, the country’s politics was determined by grand coalitions formed by the conservative and social-democratic parties. The Sozialpartnerschaft—Austria’s version of corporatism—contributed significantly to the post-war economic upturn. In terms of federalism, at the level of constituent units, the political parties and their coalitions form counterweights to the concentration of power at the federal level. The chapter also considers how transformative processes in the period since Austria’s accession to the European Union have affected the three modes of power-sharing, albeit in different ways: while consociational party-political patterns began to erode, and corporatism became less influential due to globalization, federal dynamics continue to shape contemporary politics.
Full-text available
This paper addresses questions about the socio-legal context and mainstream political theories of the peripheral nation-building strategies behind the Ausgleich [viz. the Compromise] and the British North America Act of Canada, both entered into force in 1867. The importance of this research for contemporary political theorizing lies in the fact that at the outset the vocabulary of nationalism was developed in Central-Eastern Europe, and universalised by the new Canadian political science during the last decades of the twentieth century. The paper tackles the issue of the parallel vernacular national-building strategies as common denominators of Austria–Hungary and Canada as they came up in the Eastern-Central European region as well as in the North-American political community in statu nascendi, in order to determine that multicultural part of them which may be universal, and therefore available for both multi-ethnic countries. Although the Ausgleich neither substantiated the multicultural political philosophy nor restricted seriously the Hungarian self-determination, there is widespread disagreement about whether as such it was an expedient means to dismantle the nationalism in the Central-Eastern European region. The paper will maintain that the federalist idea was not applied entirely in Canada in 1867 and even less in the dual state of Austria–Hungary. It appears that nations’ rights as group rights rest on a demonstrable link between particular peoples, their traditional territories, and their living, land-based ethno-cultures in both regions of the world. Given that the Dual Monarchy collapsed after half a century, and given that the splintering was one of the direct and indirect causes of both the First and the Second World Wars, the Eastern-Central European way of dealing constitutionally with the multi-ethnic challenge is usually filed under ‘F’ for ‘Fiasco’. By contrast, ever since the BNA Act came into force, leaving aside for a moment the devastating effects of colonization on the First Nations population, the Canadian model has been one of the most attractive examples of how constitutional design can accommodate competing nation-building agendas within a single state. When exploring these fascinating stories of Canadian and Austro-Hungarian public laws and political theories, this paper will also develop a critical argument that the ethnic/civic distinction is unable to make evident the difference between the two countries in a comparative scrutiny.
Full-text available
The growth of secessionist movements in multinational states in general and in Catalonia in particular has put into question the ability of regional autonomy to accommodate secession. This is largely because the literature on federalism and territorial politics overwhelmingly focuses on a one-sided perspective of self-rule and autonomy when analysing the territorial distribution of power and neglects the other equally crucial aspect of shared rule. This paper questions the validity of this one-sided perspective, conceptualises different types of shared rule and their causes and consequences, and illustrates the difference that shared rule can make in dealing with the secessionist movement in Catalonia. It is suggested that shared rule can be regarded as an integrative mechanism for the accommodation of Catalan aspirations for secession. Autonomy cannot be guaranteed and cannot stunt self-determination impulses without shared rule. Creating a well-functioning intergovernmental system will be a serious challenge, but without such a system, it will be difficult to accommodate Catalonia.
In order to elucidate key aspects of the relationship between energy and constitutionality, Muinzer and Ellis (2017) have mapped the full spectrum of UK reserved/devolved constitutional powers and thrown into relief the complex form and nature of low carbon energy powers within that nexus. This low carbon-specific framework, and an understanding of its complex, contingent qualities and interconnected constitutional principles provides insight into the extent to which constitutional arrangements reify the territoriality of energy governance and policy capacity, structuring the policy and governance relationships between national and substate multi-level decarbonisation processes. This study develops this ‘Energy Constitution’ framework with reference to fuel poverty, honing in on the UK and according particular attention to Northern Ireland, a UK jurisdiction that often receives little attention in energy policy studies, but that has had notably high levels of fuel poverty, in addition to the weakest substate economy and the most energy insecure circumstances in the UK.
This article traces the evolution of the Canadian approach to private international law from Morguard Investments Ltd. v. De Savoye to Castillo v. Castillo and identifies four major flaws that have significant implications for both private international law and Canadian federalism: (1) ambiguous and inconsistent terminology that undermines the conceptual foundation of this approach while obscuring its potential impact; (2) the Court’s use of American conflict of laws jurisprudence to reinforce a deferential orientation in Canadian private international law; (3) the Court’s vision of the international order and understanding of public international law, which has begun to affect the Canadian federal system; and (4) the model of the Canadian Constitution employed in these cases, which may have broad negative consequences for provincial interests. The article argues that these flaws are remediable, that both constitutional text and recent opinions contain resources useful to this end, and that, however the Court decides to address these problems, subsequent iterations of the Canadian approach to private international law should emphasize clarity, consistency, and comprehensiveness.
How and to what degree do federations produce uniform law within their system? This comparative empirical study addresses these questions comprehensively for the first time. Originally produced under the auspices of the International Academy of Comparative Law, this volume examines legal unification in twenty federations around the world. Each of the successive chapters presents the forces of unification through the lens of a particular federal system. A comparative overview chapter provides a detailed analysis of the overall results with compelling visual illustrations of legal unification along different dimensions (e.g. by area of law; by federation; by civil vs common law system). The overview chapter summarizes and analyzes the means and methods of legal unification and the degree of legal unification of each system, and explains the driving forces of legal unity and diversity in federations more generally. The volume presents surprising findings that should make scholars rethink their abandonment of the civil law vs. common law distinction in comparative law. This book is a milestone in the study of federalism. It is a rare and welcome melding of comparative law and comparative politics using both original data and qualitative analysis. Wide-ranging, probing, and definitive, this book is an invaluable resource for students of law, politics, and multi-level governance. Gary Marks, Burton Craige Professor, UNC-Chapel Hill, and Chair in Multilevel Governance, Vrije Universiteit Amsterdam
The comparative studies in this volume examine the constitutional distribution of exclusive and shared powers and responsibilities among the national and constituent governments of Australia, Belgium, Brazil, Canada, Germany, India, Mexico, Nigeria, Spain, Switzerland, and the United States. Contributors examine the reasons behind each country's system of power distribution, how it works, changes over time, successes or failures, and future trends in the allocation and sharing of power.