Maximising Consent: Operationalising Reciprocity in Secession Referenda

A constitutional referendum on secession from Indonesia was held in East Timor in 1999, with a pro-independence vote triggering widespread violence by the Indonesian army and pro-union militia. Montenegro underwent a similar process in 2006, also opting for independence but with much smoother results. This article will suggest that the deliberative democratic principle of reciprocity can help deliver referendum law based on justifications that can be accepted by all parties concerned. In particular, it proposes that reciprocity can be operationalised in referendum law if the participants in the negotiations that formulate the laws accept fair terms of social cooperation (FTSCs) and resolve disagreements using economy of moral disagreement (EMD). Respectively, these mean parties to negotiations should be willing to justify their position in mutually acceptable terms and if consensus is impossible, agreements should minimise their rejection of other parties’ views. This argument will be made using the negotiations that created East Timor and Montenegro’s referendum laws as case studies. Secession referenda are a timely issue. They have become the default mechanism for founding new states, triggering secession for Eritrea (1993), East Timor (1999), Montenegro (2006) and South Sudan (2011). Earlier this year, a referendum was used to justify Crimea’s transfer from Ukraine to Russia, and another was held to determine whether Scotland should remain part of the UK. A referendum on Iraqi Kurdish secession planned for 2014 was recently postponed, while Bougainville and New Caledonia are also expected to vote on independence later this decade. Their