Creation of Constituent Units in Federal Systems
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Center for Constitutional Transitions at NYU Law CREATION OF CONSTITUENT UNITS IN FEDERAL SYSTEMS George Anderson Center for Constitutional Transitions at NYU Law The Center for Constitutional Transitions at NYU Law constitutionaltransitions.org About the Center for Constitutional Transitions at NYU Law The Center for Constitutional Transitions at NYU Law (Constitutional Transitions) generates and mobilizes knowledge in support of constitution building. Constitutional Transitions generates knowledge by identifying issues of critical importance to the success of constitutional transitions, where a lack of adequate, up-to-date research impedes the effectiveness of technical assistance for constitution building, and assembles and leads international networks of experts to complete thematic research projects that offer evidence-based policy options to practitioners. Constitutional Transitions mobilizes knowledge through an innovative clinical program that provides “back office” research support to constitutional advisors in the field, and deploys faculty experts and field researchers for support on the ground. We meet existing field missions’ needs for comprehensive research, dramatically enhancing their effectiveness and efficiency in their role as policy advisors and actors. www.constitutionaltransitions.org CREATION OF CONSTITUENT UNITS IN FEDERAL SYSTEMS George Anderson Visiting Fellow 2013-14, Center for Constitutional Transitions at NYU Law. Executive Summary Choudhry, Sujit: “Managing Linguistic Nationalism through Constitutional Design: Lessons from South Asia” (2009) 7 International Journal of Constitutional Federal and devolved systems of government are Law 577. based on a territorial delimitation into political states, provinces or regions (constituent units: CUs). When Basis for a Comprehensive Settlement of the Cyprus previously unitary countries enter into a constitutional Problem (Annan Plan), 26 February 2003, transition to federalism, delimiting the new CUs can be http://www.globalsecurity.org/military/library/report/2 politically controversial and even an obstacle to 004/annan-cyprus-problem_maps_26feb03.pdf achieving federalism. Several countries have Chowdhury, Priyanka Dutta: “Creating New Provinces confronted this issue recently or are currently engaged in Pakistan: A Media Analysis”, 27 February 2012, in doing so. Their success has varied considerably. available at This paper looks at the experiences of over 20 federal http://www.ipcs.org/article/pakistan/creating-new- and quasi-federal countries in defining new CUs. It provinces-in-pakistan-a-print-media-analysis- examines both the issues around CU definition during a 3581.html. period of constitutional transition as well as the rules that have been developed for the incremental creation Colino, C. and E. del Pino, “Spain: the Consolidation of of new CUs once a federal constitution has been Strong Regional Government and the Limits of Local adopted. Some lessons are drawn regarding Decentralization”, in John Loughlin, Frank Hendriks and approaches to timing of CU definition, criteria, Anders Lindstrom, eds, The Oxford Handbook of Local decision-making processes during transitions and and Regional Democracy in Europe, (Oxford: Oxford longer-term rules that may be appropriate in different University Press, 2011) contexts. Derrick, Matthew: “The Merging of Russia’s Regions as Applied Nationality Policy: A Suggested Rationale” (2009) 3:3 Caucasian Review of International Affairs 317. Further reading De Visser, Jaap, Nico Steytler and Yonatan Fessha: “The Role of Ethnicity in the Demarcation of Internal Boundaries in South Africa and Ethiopia”, paper Ahmar, Moonis: “Challenge of new provinces” Dawn, presented at the Annual Conference of the 29 January 2013. International Association of Centres for Federal Alapiki, H.E. “State Creation in Nigeria: Failed Studies, Rome, 20-21 September 2012. Approaches to National Integration and Local Hooghe, Liesbet” “Belgium: From regionalism to Autonomy”, African Studies Review, 48:3, 2005 federalism” (1993) 3:1 Regional Politics and Policy 44. Bartu, Peter: “Wrestling with the integrity of a nation: International Crisis Group: “Jubaland in Jeopardy: The the disputed internal boundaries in Iraq” (2010) 86:6 Uneasy Path to State-Building in Somalia”, 21 May International Affairs. 2013, available at Bhowmick, Nilanjana: “India’s Newest State Born out http://www.crisisgroupblogs.org/africanpeacebuilding/ of Political Calculations, Not Cultural Identity” 2013/05/21/jubaland-in-jeopardy-the-uneasy-path-to- www.world.time.com, 5 August 2013. state-building-in-somalia/ Chadda, Maya: “Integration through Internal Kumar, Anand: “Centre Mulls Second State Reorganization: Containing Ethnic Conflict in India” Reorganization Panel”, New India Express, 18 August (2002) 2 The Global Review of Ethnopolitics 44. 2013. 1 CREATION OF CONSTITUENT UNITS JUNE 2014 Laponce, J.A: “National Self-determination and level Politics and the Belgian case of Brussels-Halle- Referendums: The Case for Territorial Revisionism” Vilvoorde” (2010) 45 Acta Politica 346. (2001) 7:2 Nationalism and Ethnic Politics 33. Suberu, Rotimi T: Federalism and Ethnic Conflict in Lawson, Sue: “Berlin: The New Capital” in Peter James Nigeria, (United States Institute of Peace: Washington, (ed), Modern Germany: Politics, Society and Culture DC, 2001). (Routledge: London, 1998). Tillin, Louise: Remapping India: New States and their Lecours, André “Political Institutions, Elites and Political Origins (Oxford University Press: Oxford, Territorial Identity Formation in Belgium” (2001) 3 2013). National Identities 51. Vande, Philip Terzungwe: “Ethnicity and the Politics of Makgetla, Tumi and Rachel Jackson: “Negotiating State Creation in Nigeria” (2012) 8:16 European Divisions in a Divided Land: Creating Provinces for a Scientific Journal 33. New South Africa, 1993”, Innovations for Successful Societies, Princeton University, available at https://www.princeton.edu/successfulsocieties/content Acknowledgements /data/policy_note/PN_id146/Policy_Note_ID146.pdf. Mawdsley, Emma: “Redrawing the Body Politic: Federalism, Regionalism and the Creation of New I am greatly indebted to the following for reviewing States in India” (2002) 40:3 Commonwealth and relevant case studies as well as for other comments Comparative Politics 34. and help on this paper. Of course, any remaining McHenry, Dean E. Jr: “Stability of the Federal System errors are my responsibility. Zaid Al-Ali, Harihar in Nigeria: Elite Attitudes at the Constituent Assembly Bhattacharyya, César Colino, Jill Cottrell, Rohan Toward the Creation of New States” (1986) 16:2 Edrisinha, Assefa Fiseha, Yash Ghai, Jason Gluck, Neo Publius 91. Loizides, Mara Malagodi, Luis Moreno, Christina Murray, Charmaine Rodrigues, Nico Steytler, Rotimi Moreno, Luis: The Federalization of Spain (Frank Cass: Suberu, Assanga Welikala, Marie-Joelle Zahar. London, 2001) Nationalia: “In Swiss referendum, Bernese Jura rejects separating from canton of Bern and joining Jura instead”, 23 November 2013, available at http://www.nationalia.info/en/news/1668. Ngapi, Rich: “La décentralisation dans l’impasse”, Le Potentiel, 23 October 2007. Office of the High Representative: “Arbitral Tribunal for Dispute over Inter-Entity Boundary in Brcko Area, Final Award”, 5 March1999, available at http://www.ohr.int/ohr- offices/brcko/arbitration/default.asp?content_id=4273 8. Scher, Daniel, “Managing Spoilers at the Bargaining Table: Inkatha and the Talks to End Apartheid, 1990- 1994”, http://www.princeton.edu/successfulsocieties . Smith, Gary Alden: State and National Boundaries of the United States (McFarland: Jefferson, NC, 2004). Sinardet, Dave: “From Consociational Consciousness to Majoritarian Myth: Consociational Democracy, Multi- 2 CREATION OF CONSTITUENT UNITS JUNE 2014 1. Introduction: The Issue redrawing of its map, though in a non-constitutional manner. There have also been less wholesale adjustments in which established federations have The territorial division of a country into constituent created new political units through division or units (CUs) with some constitutional autonomy is amalgamation of existing states or the creation of new 1 perhaps the most striking feature of federal regimes. states out of formerly federal territory. Finally, a few The configuration of CUs within a federation—their federations have made boundary revisions between number, relative sizes, different demographic and existing states. economic characteristics—are fundamental to the operation of the political regime. Despite this, the The politics of defining territorial units or of modifying voluminous literature on federalism has paid relatively borders is rarely easy and it can be extremely high little attention to how federal political maps have been stakes and difficult, even for quite limited changes. drawn and revised and there is no synthetic Moreover, the processes, rules and criteria for a comparative study available. This Working Paper wholesale drawing or redrawing of a federal map can seeks to address this important lacuna. be quite distinct for those appropriate for more limited exercises in which the most current states are not This question is timely because there have been affected—as with the amalgamation of two states, several recent cases of federations dealing with the carving a new state out of one or more existing states issue, while a number of transitional regimes are or out of a federally administered territory, or simply currently struggling with how