DATE

La tutela delle minoranze nazionali è una delle maggior sfide che le società complesse si trovano ad affrontare al giorno d’oggi nel contesto dell’Unione europea, in particolare con riferimento a quei paesi in cui si riscontra l’affermarsi di tendenze secessioniste.

La governance multilivello (sia essa di forma federale o regionale) svolge un ruolo centrale nella gestione delle diversità e nella riduzione del rischio di secessione. La dimensione fiscale poi è una componente vitale di ogni sistema di governo condiviso poiché la mancanza di risorse per finanziare le competenze assegnate dalla Costituzione rende impossibile il relativo esercizio, riducendo l’autonomia ad un contenitore vuoto. Tuttavia, nella letteratura sulla tutela delle minoranze si tende ad ignorare l’importanza della dimensione finanziaria, tanto che tale aspetto viene spesso tralasciato dagli studi condotti in materia. E’ proprio alla luce di questo quadro che il progetto DATE si prefigge di andare oltre lo stato dell’arte al fine di condurre un’analisi ampia e inclusiva che - adottando una prospettiva giuridica - prenda in esame il ruolo degli accordi finanziari ed, in particolare, dei meccanismi di perequazione, quale strumento di integrazione territoriale in ordinamenti multilivello che registrano tendenze secessioniste. A tal fine, il progetto si focalizzerà sui seguenti tre ordinamenti multilivello: Canada/Quebec, Spagna/Catologna, Regno Unito/Scozia.

Per raggiungere l’obiettivo prefissato, verranno elaborati una serie di indicatori che saranno usati per la comparazione giuridica al fine di misurare l’impatto dei meccanismi perequativi sull’integrazione territoriale. In particolare, verrà sviluppato un metodo innovativo di misurazione degli effetti (dis)integrativi della perequazione in unità territoriali substatali che affrontano o hanno affrontato tendenze secessione al fine di valutare se e in che come questa favorisca l’integrazione. Il fine ultimo del progetto consiste nell’applicare il metodo di misurazione elaborato ai tre casi di studio. Ciò con l'intendo si svolgere delle osservazioni comparate per valutare l’adeguatezza dei meccanismi perequativi nel favorire l’integrazione territoriale di unità substatali a rischio di secessione. Infine, si proporranno delle proposte di riforma per migliorare tali meccanismi, indentificando in particolare quegli elementi che dovrebbero essere cambiati per favorire una migliore performance e una maggiore integrazione.

The accommodation of national diversity is one of the biggest challenges that complex societies must face nowadays, especially in a context where secessionist movements are on the rise. Multilevel government (either in federal or regional form) plays a key role in managing diversity and reducing the risk of secession (Lijphart 1977; Kymlicka 2001). The fiscal dimension is a vital component of any system of shared government as the lack of financial resources to finance constitutionally assigned competences -the existence of a vertical fiscal imbalance (Boadway and Shah 2009) - would render them inoperable, reducing autonomy to an empty vessel. However, the use of fiscal instruments to accommodate diversity and reduce the risk of secession has barely been explored. These instruments are almost never mentioned in the literature on territorial accommodation as it has focused on other aspects such as the recognition of national identities (Gagnon and Iacovino 2007). Along the same line, fiscal federalism has been analyzed paying attention to matters such as the allocation of financial resources (Anderson 2010) or the functioning of the financial relations among different levels of government (Boadway and Shah 2009; Schnabel 2020) but without drawing much interest from the literature on nationalism and minority accommodation. This is in part due to fiscal federalism being a rather neglected topic of federalism, especially among public lawyers, due the complexity and polyhedral form of this phenomenon. Thus, the relation between fiscal federalism and secession has also not been covered sufficiently by the literature. Only Sorens (2015) and Rode, Pitlik and Borrella Mas (2017) have addressed this subject from the point of view of political science and economic theory, respectively, leaving aside an important facet of this phenomenon as is the legal perspective.
The case for decentralization to accommodate diversity is well established in the literature (Duchacek 1997; Keating 2001; Gagnon and Tully 2001; Burgess 2006). However, decentralization sometimes has a cost in terms of economic efficiency as divergences among subunits lead to different financial capacities -e.g. some regions are richer than others, have natural resources, etc.- and different costs when providing public services -due to geography, demographics or any other circumstances-. Equalization mechanisms are envisaged to bridge this gap and reduce disparities among subunits to achieve a certain degree of horizontal equity. Equalization can, thus, be described as a transfer of fiscal resources across jurisdictions with the aim of offsetting differences in revenue raising capacity or public service cost (Blöchliger et al. 2007). Therefore, the main objective of equalization is to -theoretically- allow subunits to provide a comparable level of services at similar levels of taxation. Consequently, as Boadway (2004) puts it, equalization can be seen as a necessary counterpart to decentralization and unsurprisingly, equalization mechanisms can be found in most federal systems with the notable exceptions of the USA and Mexico (Watts 2008). In other words, the more decentralized a tax system is, the bigger need for equalization (Shah 2017). Contrario sensu, if all fiscal powers were concentrated in the national government, no fiscal equalization would be needed, although revenue sharing would still be necessary to address a potential vertical fiscal gap unless all the powers were vested in the central government.
Behind equalization lies an idea of solidarity, the need to achieve a certain degree of horizontal redistribution among territorial subunits in a multilevel state. This is, of course, connected with the value that each society gives to horizontal equity, not only in terms of equality among all citizens but also among the subunits that integrate the country. At a first glance, one could tend to think that homogeneous societies would value solidarity more than those that are divided (Choudhry 2008), but, on the other hand, solidarity and horizontal equity could be used as a tool to hold the country together and foster unity. The virtues of equalization are such, that it cannot be considered an exclusive feature of federal/multilevel systems, as these programs can be also found in unitary states including Japan, France or the Scandinavian countries with a particular emphasis on transfers to local governments (Reschovsky 2007). Although generally praised and encouraged, equalization programs are not exempt for critique as some authors disagree with this view as they argue that equalization reduces economic efficiency in the allocation of resources -mostly labor by discouraging internal migrations- among territorial subunits and could also entail perverse incentives like deoptimizing public spending (Scott 1952; Courchene, 2008). Other source of critique comes from the political arena as receiving subunits complain that it is not enough while those that do not get funds would like to and, if a system of horizontal redistribution is in place, net payers would ask for the level of solidarity to be reduced.
The latter critiques, those coming from the political arena, are particularly important when secessionist movements come into play and, therefore, the need to explore the importance of equalization mechanisms as an instrument to reduce territorial tensions and accommodate diversity emerges.
The overall aim is to conduct a comprehensive analysis that will explore from a legal point of view the role of equalization mechanisms as a tool of territorial integration in multilevel states facing secessionist challenges. To perform the analysis, one will attempt to design a set of indicators to measure the effects of equalization mechanisms in territorial sub-units that currently face or have faced a secessionist challenge building the research upon the hypothesis that equalization mechanisms:
•    raise the cost of secession in sub-units that are net receivers of funds
•    have an integrating function as they promote economic development and cohesion
•    tend to enhance a sense of belonging and solidarity among constituent units by fostering national unity
Along these lines, the structural elements of these mechanisms will be explored to develop a benchmark to calibrate their influence in the increase or decrease of support for secession so as to be able to measure the (dis)integrative effects of equalization mechanisms in territorial sub-units that currently face or have faced a secessionist challenge. But before coming to that, it is important to clarify the working definition of secessionist claim that will be used in this study as it is key to understand the choice of the three case studies. Secession, as defined by the Canadian Supreme Court in the Secession Reference  -a landmark case that framed the topic from a legal point of view and whose legacy transcends borders (Delledonne and Martinico 2019)- “is the effort of a group or section of a state to withdraw itself from the political and constitutional authority of that state, with a view to achieving statehood for a new territorial unit on the international plane” .
Following the Canadian Supreme Court concept of secession, our attention turns into that group or section of a state that advocates for secession. In this study, one will consider that a secessionist claim exits when that effort is carried out by the government of a territorial subunit. This is so because of two main reasons. First, if the claim is sustained by the government of a subunit it implies that is not a marginal issue and that there is strong support for the secessionist cause among the population . Second, when sustained by the government, the secessionist claim is inserted into the legal and political framework consequently affecting the functioning of the political institutions, including fiscal arrangements and equalization mechanisms. Hence, this working definition applies when the executive power is who pursues secession and aims to achieve statehood repudiating the existing constitutional order. This characteristic is shared by Canada, Spain, and the UK where the governments of Quebec, Catalonia, and Scotland, respectively, have, at some point, openly called for secession. Furthermore, this concept of secessionist claim narrows the scope of the issue leaving aside those demands with small impact and therefore, does not cover territorial subunits where, although there may be calls for secession coming from different actors -even political parties with representation in the Legislative Assembly- they are not sustained by those exercising executive power. For this reason, cases such as South Tyrol in Italy, Bavaria in Germany or Texas in the US are not considered as they do not fit into this definition.
As previously said, the structural elements (e.g. the nature of the redistribution system, the conditionality attached, the institutions responsible for managing the program etc.) of equalization mechanisms will be explored to develop the benchmark that will be later applied to the proposed case studies. The comparative perspective shows that although equalization has its own characteristics in each model, there is some homogeneity around its internal architecture. Therefore, the benchmark will feature the main recurrent elements in comparative perspective that are always present in equalization systems all over the world, irrespective of the territorial nature of the state in question, as they form the backbone of any equalization compact since the absence of one of them would result in the denaturalization of the system, preventing it from performing the function for which it was conceived.
These indicators will be then applied to the three proposed case studies (Canada, Spain and the UK) comparing each of the equalization programs currently in place in these countries with the proposed benchmark to calibrate the (dis)integrative effects of its core components. The three case studies have been carefully selected to include in the scope of the study different types of multilevel systems of government: a fully federal country (Canada), a quasi-federal (Spain) and a devolutionary one (the UK) and states that have faced a secessionist challenge and have been a successful example of integration (Canada with Quebec) or are facing one at present time with different degrees of intensity (Spain with Catalonia with a constitutional crisis of uncertain outcome and the UK with Scotland where a second referendum has been demanded by the Scottish government after Brexit has been completed).
The analysis of the three case studies will be of a preeminent legal nature, focusing on arrangements at constitutional and legal level, including also secondary legislation. The final aim is to draw comparative conclusions to evaluate the appropriateness of equalization mechanisms in terms of territorial integration of sub-units at risk of secession, namely, if they can be conceived as an instrument to reduce territorial tensions and accommodate diversity and if so, to what extent. This analysis will be conducted through the evaluation of the integrative and disintegrative effects of each case to determine if equalization mechanisms can reduce territorial tensions and accommodate diversity, reversing disintegrative trends. Finally, these tentative conclusions will be used to identify possible changes that could be made to the core elements of equalization mechanisms to improve their integrative potential with the final goal of formulating reform proposals that could be implemented to foster integration and avoid disintegration, therefore reducing the risk of secession.