Territorial Referendums from a Constitutionalist Perspective: Functions, Justifications and Legal Design
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This papers aims to explore territorial referendums, i.e. votes on the own statehood of a territory, from a comparative constitutional law perspective along three dimensions. These are functions of, justifications for and the legal design of such referendums. The paper starts with identifying and analyzing four functions of such votes on a path towards secession (Sect. 2). It then explores whether there may be valid justifications, contrary to the prevailing skepticism against secession in constitutional theory and practice, for establishing a legal framework that regulates territorial referendums (Sect. 3). The following section focuses on the specific designs of such legal frameworks and differentiates vague minimalistic proclamations of a right to secession from cases featuring extensive procedural regulations to enforce this right. These may be categorized into regulations pertaining to the pre-referendum, referendum and, the sometimes neglected, post-referendum stage (Sect. 4). Section 5 concludes with an assessment of whether and how legal frameworks concerning territorial referendums and secession more broadly may matter from the perspectives of both constitutional theory and practice.