The Right to Vote: Constitutive Referendums and Regional Citizenship

Abstract

This article analyses cases in which regional citizenship is an essential part of constitutional architecture either in the form of peace agreement or federal/autonomy settlement. Apart from offering a characterisation of regional citizenships, the article argues that the franchise and formal (sub-state) regional citizenry should be more closely corresponding in cases where regional citizenship forms an indispensable part of the constitutional arrangement. Importantly, while referring to some of the more complex and (what is perceived in the literature as) unusual cases, the article questions the established citizenship hierarchy where regional citizenship is considered to be derivative of national (state-level) citizenship.

ORCID

Dejan Stjepanović http://orcid.org/0000-0002-9192-8650

Notes

1. The Venice Commission of the Council of Europe has defined constitutional referendums as: ‘popular votes in which the question of partially or totally revising a State’s Constitution … is asked’. European Commission for Democracy Through Law (Venice Commission), ‘Guidelines for Constitutional Referendums at National Level’ (11 July 2001) COE Doc CDL-INF(2001)10, I. See also Chapter 1 in Tierney (2009, 2012).

2. We leave aside the federal issue for now. For discussion of the neglect of the federal dimension of American constitutional origins see LaCroix (2011).

3. The Federalist Papers, No.10 (Rossiter, 1961, p. 78).

4. We understand there is a broader universe of cases similar to those included in the detailed comparison. Not so much for the reasons of the nature of the referendums held there but more importantly due to the lack of formal regional citizenship used in resolution of competing self-determination claims cases such as Catalonia are left out of the analysis. This is not to say that in some future constitutional arrangement between Madrid and Barcelona that might not be the case. Or, that some conclusions of this paper might not be applicable to the Catalan case, quite to the contrary. Hence, comparison with Catalonia could be the topic of some future study.

5. In Bosnia and Herzegovina, sub-state units immediately below the state are called entities and there are two of them, the Federation of Bosnia and Herzegovina and Republika Srpska. There is a territory of the District of Brčko which formally belongs to both entities but is goverened autonomously.

6. For the debate over whether Bosnia and Herzegovina is a federation or a confederation, see Bieber (2002).

7. On the relations of the Scottish franchise in the two recent referendums (on independence of Scotland and the UK leaving the European Union) see Shaw (2016).

8. See also Markku Suksi (2016, pp. 84–111).

9. Mats Löfström, Åland Centre party MP, Finnish Parliament (electronic communication, 16 November 2017).

10. For a further detailed and critical examination of how ‘the people’ are conceived in political and legal debates, see Oklopčić (2018).

11. Comparable principles were applied in the definition of the ‘special electoral roll for referendums’ [liste électorale spéciale] in New Caledonia (see MacLellan, 1999).

12. Sejdić and Finci v Bosnia and Herzegovina, Application nos. 27996/06 and 34836/06, judgment of the Grand Chamber of 22 December 2009.

Additional information

Funding

This research was supported by the National Center of Competence in Research (NCCR) – on the move funded by the Swiss National Science Foundation.