Maximising Consent: Operationalising Reciprocity in Secession Referenda

Abstract

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.