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Mark Tushnet, Secession, Policy Autonomy, and Recognition (Harv. Pub. L. Working Paper No. 22-26, 2022).

Abstract: Secessionists typically have several goals. One is getting out from under rule by an oppressive “foreign” center, where the oppression takes the form of violations of what the secessionists and objective observers reasonably understand to be their basic rights. This paper, to be appear in a collection “Constitutional Law and Politics of Secession” edited by Antoni Abat i Ninet (Routledge), deals with secessionist movements in relatively prosperous regions that haven’t suffered from the effects of classical nineteenth century colonialism, whose residents aren’t in general grossly mistreated by the policies adopted by the larger nation of which they are part. The paper focuses on two goals other than relief from gross oppression. The first is policy autonomy, meaning the ability of the secessionist region/nation to determine for itself a wide range of policy goals without requiring the approval of the center/nation of which they were a part. The second is recognition in Charles Taylor’s sense, meaning the acknowledgement by the international community that the secessionist region/nation has a distinctive national identity (which is different from the formal idea of recognition in international public law). The paper is fundamentally Coasean. It rests on propositions about the bargaining power of the secessionist region/nation in a world in which modern technologies of multi-level governance are available. The most important of those technologies are asymmetrical federalism (within the nation in which the secessionist region is located) and networks of bilateral and multilateral treaties in which the newly independent secessionist nation and its “parent” both participate, along with older technologies such as confederation. With those technologies in hand, the parent nation and the secessionist region/nation will reach accommodations about both domestic and non-domestic policy that reflect their relative bargaining power. The Coasean point is that relative bargaining power needn’t (and probably doesn’t) change merely upon the achievement of independence by the secessionist nation.