Federalism and Peace-making
Daniel J. Elazar
One of the most important developments contributing to the shift in the world political paradigm from statism to federalism has been the demonstrated utility of federal arrangements in peace-making. In a world well advanced in its movement toward federalism as the new paradigm for interstate and intergroup relations, we must expect it also to offer considerable promise for peace-making. While it is wise not to exaggerate that promise and look upon federalism as some kind of vade macum, we as students of federalism with our institutions should work hard to find ever better ways to utilize and apply federalism to the cause of peace.
This conference has focused on many examples including the most outstanding, e.g., the European Union, post-Franco Spain, post-apartheid South Africa, Belgium, the United Kingdom, India and earlier classic examples such as Australia and Canada. We have also focused on ongoing efforts including advanced ones such as Russia and those in progress like Cyprus and the Israel-Palestinian conflict.
As we all know, this is by no means an exhaustive list. We have made no direct reference to resolution of such North American problems as the status of Puerto Rico or of the various Native American nations. We have not considered the Caribbean Community or the importance of the states in the restoration of democracy in Brazil. We did take a relatively bold step in looking at regional economic arrangements as incipient confederal ones or more with political implications. We did pay serious attention to the revival of confederation as a species of the genus federalism and the utility of confederal arrangements in peace-making efforts and we moved further down the road towards understanding how asymmetrical arrangements can be utilized in federal and confederal systems.
What just about everyone meeting at this conference understands from one perspective or another is how federalism has become an aid to peace-making, at least since the end of World War II. At the same time we have not really focused on those cases where the declared use of federalism or the functional use of federal arrangements have not worked. There is almost a paradox here. Where federalism has worked, often it has been proclaimed as something else. Where federalism has been formally introduced as a solution to peace-making it has more often than not failed or at the very least disappointed. It is almost as if the term "federalism" demands too much of the parties involved and federal arrangements can only be used successfully in conflict situations when they are masked as "functionalism" or "autonomy" or "decentralization" or whatever.
There is a certain justification for this seeming truth in that "federal" is a loaded term, one that, more than simply describing arrangements and institutions, has to do with serious principles, real attitudes, binding relationships, specific expectations with regard to mutual trust, in short, the will to federate. Even if the discussion of federalist political culture is relatively new on the political science agenda, the sense that federalism can only succeed where such political culture exists sufficiently also figures into this equation. Even less expressed is the expectation that federalism has at least one of its major roots in the idea of federal liberty, that is to say, liberty to do that which is mutually agreed upon in the founding compact or its subsequent constitutional modifications. Without federal liberty as an accepted principle neither freedom nor responsibility can develop properly.
I would suggest that there are three levels or, if one prefers, dimensions of federalism, involved in the use of federalism for peace-making. The most proximate is the use of federal arrangements, whether by that name or some other. The use of arrangements that are able to combine self-rule and shared rule and to constitutionalize the combination is federalism even if it is called functionalism or autonomy or something else. There is an old American saying: "If it quacks like a duck, walks like a duck, and looks like a duck, it is a duck, no matter what you call it." That is why the European Union of today, although founded as the European Community with a deliberately neutral name and description as a set of functional communities, developed into a federal system of the confederal species after passing through periods of growth and crisis over the past 40 years. The earlier effort to establish the openly federal "United States of Europe" failed because it reached too far and was too explicit in doing so, awakening the hesitations and reservations of too many of those involved in the decision-making at whatever level in the years immediately following World War II. Hence it was only when the leading European federalists retreated, as it were, from federalism and adopted functionalism that it was possible to start building a federal union in Western Europe.
At this level, while the term "federal" may or may not be used, and while it may be possible to dissimulate with regard to principles, it is less possible with regard to institutions. It is a too rapid jump from subtly applying federal principles to federal explicitly referring to them as federal institutions as such that has contributed to numerous failures of efforts to use federalism to make peace. One need only look at recent and earlier efforts in the Balkans for confirmation of this.
So, too, with so many of the failed Third World federations attempted at the time of decolonization. In some cases the formal application of federalism led to total disengagement of the member states. In the Federation of Northern and Southern Rhodesia and Nyasaland, the conflict between the white minority and the black majority which gave the federation the appearance, probably correct, of trying to preserve white minority rule, collapsed entirely and each colony became an independent state. Federal efforts in Ghana, where the racial problem did not exist but the problem of dictatorship and democracy did, it was dictatorship that overwhelmed federalism.
In the case of Pakistan and other similar examples, it was lack of the requisite attitudinal dimensions of trust, will to federate, and federal political culture that turned federation partly into secession and partly into a dead letter for many years. On the other hand, while the West Indies Federation collapsed because it reached for too much, the Caribbean Community, a confederal arrangement, emerged out of its wreckage based on an unavoidable necessity for cooperation and sharing, even among islands by definition insular.
On the other hand, in Belgium after trying several other arrangements and terminologies, it became apparent to the parties involved that explicitly reinventing Belgium as a federation would be more helpful and so federation was successfully embraced in place of the earlier regional autonomy which had in turn replaced an earlier de facto provincial decentralization. Similarly, in Spain, use of the word "federal" in the constitutional reinvention of the country in the wake of Franco would have scared the right to death or perhaps to revolution and equally frightened the separatist movements in the country's very strong peripheral regions. Adopting a different terminology, then, was vital to the initial success of the effort. With the passage of time, however, it has become increasingly easier for all involved to describe what they invented in Spain as "federal" and to take a certain pride in the regularization of their regime in that way.
At times simple structural situations leave less room for federalism in the peace-making process. For example, two-unit or three-unit federations are extraordinarily problematic because every issue seems to be translated into a zero-sum game or two always seem to be ganging up on the third. This is particularly true when such federations involve either bicommunal or tricommunal arrangements where ethnic or nationality pressures, which in general tend to be separatist, are deeply rooted and can militate against power-sharing, even under self-rule/shared rule conditions.
One of the ways to overcome the deficiency seems to be by widening the sphere to be encompassed by the solution. This is necessary for federal peace-making to take place, in some cases from the very first. For example, efforts to bring together two separate units are inevitably problematic not only because it is easy for every issue to turn into a zero-sum game with one side winning and the other losing, but it also is difficult to transform develop or transform issues into ones in which both sides win. It is true that in some cases when both sides are losing sufficiently, widening the sphere helps them come together to control their losses.
That seems to be what has happened in connection with Northern Ireland. There, Protestants and Catholics have been involved in an intensive bicommunal conflict for over 300 years. Every issue seemed to take on zero-sum characteristics. Finally, however, after extensive mutual bloodletting, both sides recognized that they were losing and that no one was winning.
It was then that Northern Ireland's connection with the United Kingdom and the ability of the UK government and that of the Irish Republic to begin to develop a common framework to embrace them both because both were members of the European Union, made it possible to widen the sphere and allow the UK and the Irish Republic to put sufficient pressure on the extremists on both sides, so that when joined by the ordinary people in both camps who were tired and sick of the bloodshed, serious steps could be taken toward peace. The recent agreement signed by all the parties reflects the intricate overlay of relationships between the different components in that widened sphere, all of which involve some measure of constitutionalized self-rule and shared rule ranging from federation within Northern Ireland itself, to confederal arrangements linking the components in the various larger arenas. The framework provided for all the parties by the European Union was critical in this respect. The existence of the EU and the recognition it had achieved as vital to all provided the needed umbrella for the UK and the Irish Republic to act.
Once again, we are brought back to the cliche that "timing is of the essence." But what timing works in each situation is less clear and requires the exercise of judgment by those in leadership positions at the time, a judgment that can be helped, I believe, by the appropriate historical and theoretical knowledge of prior experience.
While political leaders may debate or discuss when and where to use levels one and two in peace-making, they almost never discuss the importance of level/dimension three. The growth of the systematic study of federalism over the past decades has brought scholars to consider level three in many ways previously absent from the rather arid theoretical and institutional discussions of earlier years. Even scholars of federalism, however, have not penetrated deeply into a systematic understanding of those issues of trust, will, culture, attitude, and federal liberty which comprise that dimension.
No matter what form federalism takes, how federal institutions are designed, and what federal principles are emphasized, it is generally clear by now that where there is a positive attitude toward federalism and a will to build a federal system, where the political society involved rests on sufficient trust, sufficiently widespread to allow the many leaps of faith that must be taken to make federalism work, where political culture is either favorable or at least open to federal arrangements, where all of this leads to a wider understanding of liberty as federal liberty, then federalism has a good chance of succeeding when used for peace-making. It may have almost as good a chance if most of those elements are present and some chance even if one or two of them is. But it seems quite clear that without any, the chances of success are extremely limited.
There is at least one case in which the use of the term "federal" to describe a mutually desired solution even too little of this third dimension seems to be available to do much to implement such a solution nevertheless has been generally successful in preventing open conflict, although it has not led to the making of peace. That is in Cyprus. There, both communities recognize the necessity or desirability of a federal solution, each from its own perspective, but since those perspectives differ considerably, with one side seeking federation to re-extend its control over the entire island, and the other side, seeking confederation to be as independent as possible, they can only agree on the principle but not on practical steps toward its implementation. Perhaps because they at least have the will to achieve such a solution the agreement in principle has restrained conflict, although every so often matters heat up and new peace initiatives are begun in response.
Post-Soviet Russia may be another example of this. The leaders of the Russian Federation consented to federalism to keep Russia together after the secession of the union republics of the old Soviet Union on Russia's peripheries. The 89 republics and regions within Russia accepted federation because they did not see themselves able to become fully independent states given the balance of power within Russia itself. In a sense this is demonstrated by the two republics which have sought independence -- Tartarstan and Chechnya. Neither was prepared to accept a federal solution, but after one degree or another of armed conflict, both recognized the realities in which they found themselves and simply tried to negotiate a better deal from Moscow in the form of greater independence. Most of the other 87 also tried to negotiate their own deals with Moscow in order to achieve as much autonomy as they could.
In situations where all or virtually all of the prerequisites of the third dimension are absent, it is more difficult to use sphere-widening to overcome the built-in fears and resistance to the use of federal arrangements for peace-making, even though those situations may desperately call for such arrangements if peace is to have any chance. Sometimes, wise use of sphere-widening may be of help.
In the case of Israel and the Palestinians, the authors of the Oslo agreement or at least some of them adopted this principle and sought to move the conflict beyond the simple Israeli-Palestinian confrontation with its zero-sum consequences to provide benefits to the other confrontation states and indeed to the entire Middle East. Actually, they succeeded in using the widened sphere to advance the peace between the two immediate partners, but the fact that their widened sphere could not involve federal arrangements except in the most immediate arenas and required international arrangements in the larger ones, a situation in which almost none of the third dimension elements were present has limited the help the widening could bring to the peace process in the region.
In sum, there is no question that the third level/dimension makes the use of federalism in peace-making much simpler and more promising. The problem is that while there are many conflicts in the world that could benefit from federalism in their resolution, there are few that have enough of that third level present in sufficient or perhaps even any measure. We see the consequences of that in Bosnia, in Chechnya, in Sri Lanka, and elsewhere. Here is where creative and energetic statesmanship becomes critically important.
At the end of my book Constitutionalizing Globalization I give a list of lessons we have learned about using federalism for peace-making. I summarize them here:
What can we learn from all of this? We begin with some of the fundamental truths about federalism and federal solutions of any kind.
1. Statism sees the state as reified -- the most comprehensive and authoritative association which lives over and above its people. The institutions of the state have a life of their own, separate from that of the rest of civil society. As the single most comprehensive association, the state is the repository of all political sovereignty. Effective government must be centralized in the hands of the sovereign, although the composition of the sovereign may have been popularized as a result of the changes of modernity.
Federalism, on the other hand, does not concentrate on questions of sovereignty, but on questions of powers. Sovereignty is quickly disposed of by being vested in the hands of the people, which distributes governmental powers to various authorities at the people's pleasure and by constitutional means to make certain that there will be no centralization or concentration of the power in a few hands. Civil society is a matrix of associations, organized politically into various governmental arenas, most empowered directly by the people. The state is no more than a political association like all others. Federalism does not recognize any reified state or state apparatus separate from civil society. The institutions of government are simply among the institutions civil society empowered by the people and the constitution to undertake their tasks. The different arenas of government are not higher or lower than one another, but are more or less comprehensive in their scope.
Federalism rejects the power pyramid and center-periphery models in which the periphery is ruled by the elites that occupy the center. By removing sovereignty from any single institution, and investing it in the people in their various organized forms, federalism stands in opposition of the idea of the reified state. This is true for the entire genus of federalism, but differs in each species. It is most true for federations and least of confederations. Confederations do have a place for states in a more statist sense among their constituent units. Indeed the state model may serve to preserve the respective integrities of the units in the confederation. In many cases, it is even necessary to make confederation itself possible, since the publics of the various state civil societies have as a foremost desire the preservation of their respective integrities, they will need to feel appropriately safeguarded through constitutional arrangements that recognize and protect that need.
2. All federalism involves some combination of self-rule and shared rule. In confederations, a premium is placed somewhat more on the self-rule of the constituent units then in federatons and shared rule is more circumscribed, but they both must still be present and effective. Federalism in general emphasizes relationships, especially constitutional ones, of which the self-rule -- shared rule relationship is the most important. Constitutionalized non-centralization is a means to effectually self-rule shared rule relationships, more so in confederations where non-centralization -- the matrix model with clearly defined arenas -- is a sine qua non.
3. Ethno-nationalist statism is the most difficult form of statism to accommodate in any kind of federal relationship. Ethno-nationalism is highly egocentric in most if not all cases. Consequently, there must be even more of a will to establish federal links and arrangements where ethno-nationalism is involved. Confederal arrangements require a different level and kind of commitments than federal ones in this case. Confederation requires a different kind of linkage than federation. Still, the will to confederate also must exist. That is necessary for a successful confederation, if not sufficient. There is a necessity even in the case of limited arrangements for all parties to be willing to live together, to establish relationships of mutual respect and for all parties to exercise self-control in those relationships.
4. From that general beginning, we must determine what we have learned about the special problems of federal arrangements. Probably the most important of those is to find incentives for the federal constituents to enter and stay in the arrangement. The completeness of the constituent states and the degree of autonomy they retain, often under conditions through which their interest in or need for autonomy is already extraordinarily great, may substantially reduce the incentives for even confederal linkages. This is not necessarily so. For example, in the European Union, despite the statist nationalism of so many of the twelve members and their ethnic uniqueness, all have had an incentive to gain economic benefits from membership in the community. Those incentives have already served well. A major issue in any arrangement is to provide sufficient incentives for the members to remain in it under circumstances where secession will remain an option, either de facto or de jure.
It is clear that federal arrangements to long survive need a commitment to permanent union. This indeed was one of the special points of emphasis of both modern federation and confederation. The American Articles of Confederation established a perpetual union and so did subsequent efforts at modern confederation although as Duchacek correctly points out. Confederations are often closer to leagues than to federal unions. The term union is not only a paper necessity, it has to be sufficiently enforceable. I say "sufficiently" because it is clear that to be as enforceable as it would be in a federation probably would be more than the confederal partners would accept. Some element of sufficiency, that is to say some great disincentive to secede and great incentive to remain is required. For the European Union the huge economic penalty of secession is a sufficient disincentive to have made secession an essential impossibility. So, too, is it to looser league-like international bodies like GATT. We may anticipate that the necessity elsewhere and in general will be economic.
5. Federal arrangements are also faced with the problem of providing a proper understanding of federal liberty. Examination of the American experience suggests that there is limited conceptual difference between federal liberty in federations of confederations, though there are likely to be some differences in terms of the pact that establishes the political terms of federal liberty for the body politic in each species. In its most basic moral sense, federal liberty is the same for all people no matter what kind of regime serves them. Regarding the specifically political dimensions of federal liberty, these will indeed vary from regime to regime as well as between confederations and federations.
Certainly, the degree to which bonds of community are called for across the federal linkages will be less in confederal arrangements than in federations, while the bonds of community in the constituent units are likely to be all that much greater. The bonds of comity however, must be proportionate to agreements made in both.
Modern democratic republics follow one of two forms: commonwealth, in which there is a fundamental commitment to a moral and cultural homogeneity that goes beyond merely supporting the shared rules of the game; and civil society, in which far greater moral and cultural differences are acceptable and in which the emphasis is placed upon universal support for the shared rules of the game. Whatever the arguments in theory, the historical record shows that empirically, federal arrangements are more likely to be civil societies as is the United States than commonwealths as in Switzerland. In confederations, on the other hand, the constituent units are likely to be commonwealths while the confederation as a whole will requires adherence or commitment to fewer and less extensive rules of the game and even less in the way of cultural homogeneity. That, indeed, is why confederal arrangements have again become appropriate. They enable commonwealths to enter into federal arrangements without losing their character as commonwealths. That is why confederations and confederal arrangements are more easily appropriate for the resolution of ethnic conflicts if they can be made to work.
Vis-à-vis natural liberty, the emphasis on federal liberty certainly applies equally to both but then it does to all civil societies, polities, and communities whose goal is to enable people to live together on a basis beyond that of a Hobbesian state of nature. Negotiating the terms of federal liberty must be appropriate to the different character of constitutionalism in federations and confederations, with constitutions, charters, and other pacts serving as the most open and honest way to reach agreements as to what constitutes the federal liberty of bodies politic on necessarily collective matters. This may be so widely recognized that it hardly need be stated. It is clearly visible in the various charters of the European Union and in the struggles over their drafting and application. It is equally visible in the covenants and charters of the United Nations where member state ratification and enforcement is far more discretionary.
6. Two emerging phenomenon on the international scene should be noted: one, the merger of the two state systems of over 180 politically sovereign states and the over 350 constituent states, and two, the development of the idea of both kinds of states as neutral service providers for all within their boundaries. Elsewhere I have suggested that with the emergence of new postmodern diaspora and state-diaspora relationships, the high levels of international mobility since the end of World War II, especially those affecting Europe, and the emergence of post modern confederal arrangements, which both encourage those migrations and limit the possibility of migrant assimilation in new lands of residence, have led to a de facto compromise that every state is required to provide essentially equal services to all of its residents regardless of citizenship. Federal arrangements enhance the possibility of doing just that since they can distinguish between human and civil rights; the right to enjoy services and the rights of citizenship.
7. If the link between domestic and foreign affairs becomes blurred and increasingly interdependent, just as economic development, historically a domestic concern has increasingly acquired international dimensions, as telecommunications and environmental pollution increasingly demonstrate the accuracy of the proverbial claim that they know no boundaries, federated (or constituent) states are as much involved in trans-border transactions as politically independent states while politically independent states increasingly come under the authority and the scrutiny of the "international community," not only in terms of their foreign and defense policies, but even in terms of their domestic policies' impact on their inhabitants or their neighbors. This is particularly true since the demise of the Soviet Union (in part just because of that kind of pressure) and the emergence of the United States as the world's only superpower. The United Nations has become somewhat a more united and powerful world-wide coalition of its members better able to act than ever before to serve the common interests of the world community, and to promote certain common services. Will the linkages thus developed be those needed to develop what became in time de facto confederal arrangements?
8. All of this should explain why there is a revival confederation. The need to establish proper partnerships while at the same time preserving communal, ethno-national, or simply national integrities make confederal solutions not always ideal, but often the most practical. The European Union has shown the way; certainly its member states have demonstrated a desire both to preserve their national integrities and at the same time link together for economic purposes and to maintain the security of western Europe by harnessing the German giant to its neighbors.
9. If we look at the history of the EU and other new-style confederal arrangements, it quickly becomes apparent that the old reason for confederation in modern and premodern times -- mutual defense -- is perhaps the issue to be most avoided if postmodern efforts are to be successful. If security concerns can be accommodated by other means, particularly those linked to external powers, and great pressure is removed from parties that are, in all likelihood, somewhat reluctant or ambivalent about confederating altogether, they are able to focus on matters of mutual benefit that carry far less risk. Security matters may remain very important for federations, but for confederal arrangements they should have a very low profile.
The EC weathered some trying moments over the following decades and came very close to confronting secessionist movements in the late 1970s, but when the chips were down, it had already become clear by that time that it was in no member's interest to pull out because of the economic integration that has already taken place. Thus, the EC overcame the problem of incentives to linkage through its economic mechanisms. Subsequently, the issue of union changed to being a question of what kind of linkage, federal union or something else, which is where the EU now stands.
Moreover, the confederal arrangements of the EU were supplemented by other European-wide and even North Atlantic-wide agreements, demonstrating once again that (quasi-) federal arrangements beget more federal arrangements. These included various kinds of agreements ranging from NATO to the Council of Europe to the Helsinki Agreements to protect human rights centered on Europe. Although these agreements were more in the nature of the confederal agreements that Duchacek describes in "Consociations of Fatherlands," i.e., augmented international treaties, since they were anchored on the EC, a true confederal arrangement, they acquired more force than ordinary international treaties. Together they have established the beginnings of a framework for permanent confederal arrangements to link all of Europe.
This trend may have suffered a setback as a result of the civil wars among the ex-Yugoslav republics, although the last word on that is not yet in. In the Yugoslav case, the EU, confronted with its own problems of linkage, did not rise to the occasion in time. Germany took the led on its own and contributed to worsening the situation. Subsequently, the EU began to develop a concerted response, even involving the presence of troops from several EU nations as part of the United Nations peacekeeping force, but its failure was not reversible.
10. The other confederal arrangements that have emerged are for the most part less firm than the European Union and some are hardly more than augmented treaties. They are following the "rules" laid down by Duchacek, including the ways and means to move toward more solidly confederal arrangements when they are desired by the parties involved. Some indicate the need for dyadic arrangements which Duchacek properly describes as the most difficult of achieving. In all, the system of developing networks of multiple authorities, some with the same jurisdiction and others with different "service -- sheds" has emerged as the primary mechanism for confederal linkages. For these purposes much can be learned from the study of intra-metropolitan linkages, particularly from the studies undertaken by Holden and the Ostroms and their students in the United States.
11. The problem of ethnicity and confederal arrangements needs further study. Increasingly, the application of federal institutions and practices, especially in their confederal form, is based on the need to resolve inter-ethnic conflicts over the same or adjacent territories. Inter-ethnic conflicts are thus the greatest catalysts for federal solutions, yet perhaps their greatest enemy. Indeed, as is indicated in this series, federal solutions are particularly attractive when ethnic groups are involved because they seem to offer the promise of preserving ethnic group identity and political autonomy without requiring that every ethnic group be given a totally separate state. At the same time, ethnic groups in the full thrust of their ethnic separatist demands are least able to overcome ethnic egocentricity and to find a will to federate. Moreover, the ideology of ethnicity very often undercuts any political culture of power sharing that may exist.
With all that, nevertheless, federal arrangements very often offer the only possible way to resolve inter-ethnic conflict. They do not apply appropriately in every case, but there are many cases in which they will. In addition to cultural and ideological predispositions, the effective use of federal solutions is enhanced if the ethnic groups are territorially separate and weakened if they are intermixed. Perhaps the motto for all confederal arrangements should be "good fences make good neighbors." Where it is possible to erect good fences, i.e., to maintain a certain real degree of territorial separation between ethnic groups, there is greater chance of their cooperating with one another on a permanent basis.
If the groups are intermixed, however, and such separations are thereby physically impossible and must be secured through other means -- consociational, for example -- the chances for the formation and survival of federal arrangements are much more problematic. The chances for conflict are greater because the opportunities are greater. Furthermore, the historical record with regard to consociationalism, based as it is on elite accommodation, is that consociational regimes retain their consociational character for two generations, no more, unless that character is reinforced by territorial divisions or some other independent mode of accommodation. After that time, the polity that emerges either is more integrated, as in the Netherlands and Israel, or less as in Belgium and Lebanon. Belgium, indeed, adopted a conventional federal solution in place of its increasingly ineffective consociational structure. Lebanon collapsed into civil war which was ended only after substantial Syrian intervention and what is, in effect, the Syrian occupation of the country.
The expanding need to build a world-wide network of arrangements for peace-keeping and economic growth is likely to turn to further stimulate federal arrangements in the third arena. Attention must be paid to the problems which ethnicity poses for federal arrangements of that kind and for the promise which federal arrangements offer for resolving inter-ethnic conflict on a grand scale. These ties, which inevitably will be looser, may also be less threatening, especially with positive major power involvement. They actually may assist ethnic groups toward confederal arrangements for handling more localized problems including conflicts.
Perhaps the best example to date can be found in western Europe. The rapprochement between France and Germany and the French and the Germans through the European Union and the EU's contribution to it and the rapprochement already under way for the previous forty years between the British and the French are two prime examples of this. It is questionable whether the British and the French, not to speak of the French and Germans, are any fonder of each other than they were in the past. From the record, it seems as if they may not have to be. They may retain at least some part of their traditional prejudices toward the other as long as in areas of common concern, they are prepared to reach confederal levels of cooperation, which they have shown that they are.
It is perhaps exaggerated to describe the divisions among islanders in the Caribbean as equivalent to ethnic tensions, but there insularity offers many of the same difficulties, even as smallness calls for certain kinds of linkage. If movement there has been slower than in the EU, there also may be less need and the most damaging forms of insularity seems to have been contained through common confederal institutions and actions.
In a sense, almost every associated state relationship also represents an effort to resolve an ethnic conflict. The asymmetrical character of the polities involved usually has much to do with the fact that the smaller ethnic group may have little choice while the larger may have little to fear from acting generously. Still, these represent examples of another kind of political accommodation of ethnic demands. Such demands might seemingly be more easily suppressed, while there are some kinds of arrangements that can allow a great power to be generous.
In some cases, inter-ethnic conflict between more evenly balanced groups, the application of any power-sharing solution is all that more difficult. We have seen how it has erupted into full-scale, bloody, even genocidal, civil war in the territories of former Yugoslavia. Their leadership, instead of reinforcing the constitutionalization of a confederal solution already well on its way to becoming the reality in practice, disrupted the best and most peaceful era that those peoples had ever known and reintensified old conflicts that had been much reduced under the previous regime. Nevertheless, attempts to achieve a peaceful solution still have rested upon suggested confederal arrangements, such as the division of Bosnia into semi-autonomous provinces or into Serbian, Croatian, and Muslim areas punctuated by "safe havens." There is nothing else to suggest in a democratic age. Unless the peoples on the ground and the rest of the world are willing to allow a more violent and genocidal solution such as "ethnic cleansing" with impunity or perhaps the imposition of very severe authoritarian if not totalitarian rule, this is the only direction in which to look, where full territorial partition is not feasible. Moreover, simple partitionist solutions are becoming less and less feasible in an increasingly interdependent world. One need not see confederal arrangements as universally applicable or anything like that to understand the truth of this. Instead, more sophisticated devices that combine partition and linkage are called for.
12. One thing is clear, no federal arrangement can be established by force. If force is used, it will not be a federal arrangement. The experience of the ex-Communist countries with forced "federalism," all of which disintegrated with the collapse of Communism, should be an important and even salutary lesson to all. In the end, new confederal or even federal arrangements may emerge in all or parts of the territories of the former USSR, but they will be negotiated and not imposed.
13. What, then, can bring about federal arrangements in cases of ethnic conflict. One answer is terrible fear of the alternative. The role of terror in promoting fundamental change has been raised. Terror in this sense is not the manufactured terror of human political revolutions that the world has come to know in the past two hundred years, but the honest terror derived from changed situations and the increasingly more widespread perception of their potential consequences if not responded to appropriately.
This, indeed, is what has led to serious efforts to resolve the great ethnic conflicts of our time -- in South Africa, in the case of Israel, the Palestinians and Jordan, and in Northern Ireland. At a certain point in the conflict, fear of its consequences, at least in the minds of a major share of the leadership on the various sides, grew beyond fear of the consequences of the compromises and concessions that had to be made to achieve any resolution or movement toward peaceful resolution of the conflict. In all three cases there was sufficient latent strength in the regnant political cultures to provide a basis for developing a response to those terrors. These latent political cultural supports were not distributed equally or symmetrically among the parties to the conflict, nor were the responses symmetrical, but they were sufficient to allow moderates to begin to seize control of the relevant centers of power needed to move resolution of the conflict along. It is too soon to tell whether they were sufficient to achieve the peaceful ends sought. In that respect, South Africa has moved further down that path. In the case of Israel, the Palestinians, and Jordan, the movement has been significant, but it is too early to say whether it can continue. Unlike the situation in South Africa where institutions and mechanisms were found that seemed to sufficiently satisfy the parties, they are still in the process of being developed in the Middle Eastern conflict. Northern Ireland is just beginning the process of negotiation that can lead to the next steps.
In contrast, where the fears of continuing along the path of conflict do not outweigh the fears of resolving it, the conflicts continue no matter what opportunities the political cultures of those engaged in those conflicts can provide in the way of movement toward resolution. In most cases, indeed, there is very little that the political cultures do provide, exacerbating the problem rather than offering a basis for its resolution, putting a greater burden on the need for fear and even contributing to the exacerbation of the conflict. This is the case with regard to the conflicts in the former Yugoslavia, the former Soviet Union, and in black Africa.
14. In most cases those conflicts, as in the ones earlier mentioned, religion plays an important role, either manifest or latent. In none of them is religion enough to provoke the conflict; it seems that an ethnic dimension is needed as well. In this respect they may differ from the wars of religion which contributed to the foundation of the modern state system, although it may be wise to explore the manifest or latent ethnic identities of the warring European states in the sixteenth and seventeenth centuries as well. Even among the German-speaking peoples there were significant ethnic differences, many submerged or half-submerged by that time (Saxons, Alemenians, Teutons, Thuringians, etc.)
Religion may not cause a conflict and in no case is it the sole cause, but certain kinds of religious differences exacerbate conflicts that otherwise might occur in any case. That is the case with most modern ethnic conflicts. Conflicts caused by religion alone are more likely to be intra- than inter-ethnic. These intra-ethnic conflicts may revolve around rule and power and religion may be a means to resolve them. This has been true in the case of all three monotheistic religions at various times in their history. It is true in Islam today with regard to Muslims, even though Islam with regard to non-Muslims is one of the powerful fomenters of conflict. In the resolution of such conflicts, federal arrangements may indeed prove to be very helpful, not so much in taking the first steps, but in taking the next steps, in providing the institutions and mechanisms to bring the resolution of the conflict to a level of sufficient stability for peace to begin to work itself out.
15. This understanding of the role of federal solutions of whatever kind is vitally necessary if federal solutions are to work. In the past, partisans of such solutions would propose them as the starting point for resolving conflicts. Not surprisingly, such solutions often failed, requiring too high a level of trust between the parties at the beginning and too great a political cultural base. By considering only the structural arrangements, advocates of such solutions made no provisions for considering psychological and cultural elements.
The problem was not with the federal solutions but with the inappropriate timing used in connection with them. No doubt, there are political cultures which will never be able to sustain federal solutions. Egypt, for example, has been governed hierarchically since its emergence on to the stage of history over 6,000 years ago. Nevertheless, introduced at the proper time and in the proper manner, federal arrangements and at times even federal principles can be of great help in moving an inter-ethnic conflict the next step toward resolution.
In South Africa, for example, very few whites or blacks favored any kind of federal solution to their problems. A large majority on both sides saw federalism as a means by which the other side would be able to dilute the strength and political power of their side. First there had to be a sufficient reconciliation between the white-dominated South African government and the black-dominated African National Congress to enable them to talk with one another. They then discovered that there was enough willingness for reconciliation among their respective peoples.
When they started talking with one another, they also began listening. Both sides soon were convinced that the establishment of provincial and local governments with some governing capability was necessary in any solution. That, coupled with the unremitting federalist demands of the primarily Zulu Inkatha Freedom Party and the federalist proposals from Joe Slovo, whose left-wing credentials were unchallengeable, led them to begin the process of designing appropriate structures and mechanisms. This, in the end, required an additional round after the interim constitution was promulgated in order to satisfy the IFP, but once the new government was in place and steps had to be taken to write a permanent constitution, it seemed that the only argument left was the extent to which full federalism would be introduced and how the provinces would be divided.
South Africa is a good example of putting federal solutions on the table at the right moment. In fact, outside experts, a number of whom are as were connected with the IACFS or its member centers, had to raise the question of federalism and teach their colleagues responsible for the technical work of the negotiations what federalism entailed in order for the latter to be ready for the right moment.
The case of the European Union is similar in its evolving use of confederal arrangements. First, a proper measure of contact and trust had to be established, and then confederal solutions could be discussed, even if not as such, conceptualizing them in a manner that fit the dominant political culture they were to serve.
16. Are there other incentives to federalize? Thomas Hueglin has suggested with just a touch of cynicism that the European Community was founded and has survived as a network of interlocking trade-offs, each to the advantage of one of its members. There is nothing wrong with that. In general, all the members desired European peace after World War II, wanted to avoid vulnerability to Communist bloc conquests during the Cold War, and wanted to avoid the economic hegemony of the United States. For Germany and Italy and later for Spain and Portugal, the EC easily provided political respectability as they came back from their Nazi and Fascist pasts. In the small Benelux countries, the EC offered the chance for a larger voice in the new western Europe and powers of co-determination. France gained "substantive control over the coal and steel production of its remilitarizing German arch-enemy." After World War I, it tried to gain that by detaching the Saar region from Germany -- partition -- in a move that failed. German Federal Republic support for EC subsidies to support French agriculture was an additional benefit for the French.
Hueglin places himself among those who are disappointed that the results of all this were not a federal Europe but rather a confederation. Still, he points out why confederation really allows the members no effective possibilities to secede without paying huge costs. That is the other dimension of its success. In the process he describes how the institutions of the EC evolved away from federation in the direction of confederation.
17. This brings us to the larger point that postmodern confederation rests upon several principles of constitutional design which differ from the federal arrangements of modern federation as well as premodern confederal ones. The founding fathers of the EC saw the European Parliament as the lower house of the future European legislative assembly and the Council of Ministers as the future Upper Chamber in the pattern of the German Bundesrat. The European Commission was to evolve into a supra-national Executive or collective government with a rotating presidency.
In fact, the Council of Ministers claimed the authority, responsibility, and power for executive decision-making. The Council remained a body for international negotiation rather than supranational policy formation, with each member state retaining veto power and its decisions requiring unanimity, at least de facto. The Commission became responsible for providing and preparing policy expertise in accordance with national prerogatives and administered the bureaucratic community regulations which did indeed accumulate as the major body of supranational control. The EU bureaucracy and the Commission's executive may not be fully acceptable in formal democratic terms, but they have acquired immense power, while the European Parliament, even though now elected by the voters of the member states, has remained essentially an advisory body.
The direction of this slide is clearly toward confederation, but it is a tight confederation. The EU becomes a tighter confederation all of the time. If asked the question how tight can a confederation be and still be a confederation, we have to conclude that we do not yet know. At the very least, the EU is breaking new ground all the time. At the same time, it teaches us much as to how a confederation can be formed and made successful. There must be multiple incentives based on trade-offs among the potential members, until leaving becomes such a disincentive for any one of them that it is rejected as a possibility.
18. It also points to the difference in the institutions of a federation and a confederation. A confederation is not built on the traditional tripartite separation of powers and three-fold set of constitutional arenas. Its separation of powers is much looser, usually based on four-fold separation of institutions and up to at least four and maybe five arenas with their own constitutional standing.
It seems that postmodern confederal arrangements are best constructed out of single and multi-purpose joint authorities by those who are in the process of becoming constituent members. Thus, they weave themselves a tailor-made web, authority by authority. This device was used by the Swiss republics to form their Helvetic Confederation in premodern times, relying on a somewhat different set of principles that the authorities may or may not include all constituents uniformly. They provided full or partial exemptions from some of the linkages for some of the constituents. They also include a second set of authorities that reached beyond the original members of the confederation. In other words, the system of the authorities allows for flexible boundaries in some cases, organized more or less on the basis of both the arenas and the populations to be served.
19. The most promising basis for confederal constitutional design in postmodern confederations is decision-making through collegial institutions with a substantial amount of equality among the constituent units built in. These three principles seem to be consistent in all of our examples. Two more maybe included. In place of the traditional three-way separation of powers, a four-way separation of powers seems to be emerging in the general collective governing institutions of each confederation. The European Union is the best example, sharing power as it does between the European Council, the European Commission, the European Parliament and the European Court formed as a matrix. Elements of collegiality are present in all four, although the Council is the most collegial and equal. All three others have collegial components and reflect the basic equality among the members.
20. The internal federal arrangements of postmodern confederations increasingly involve more than the classic three arenas: federal or confederal, state or constituent units, and local. In the European Union, for example, there are the Union institutions, the members states, and also the constituent bodies of those members states, a number of which are federations in their own right. Germany and Belgium are federations. Spain is a federation in all but name and Italy, which opted for regional decentralization has increased the powers of its regions. Great Britain while formally a Union, incorporates constitutional protections for the countries and offshore islands that together comprised the United Kingdom of Great Britain and Northern Ireland. Even historically centralized countries like France and Portugal have attempted some decentralization to their regions or provinces.
The Eu ropean Union increasingly has to make arrangements for these four arenas. In addition to what already exists, there is a major EU effort to strengthen subnational regional governments in every one of its member states. This is not necessarily a matter of abstract principle. The European Commission is interested in doing so in order to strengthen the EU government vis-à-vis the national governments of the states it serves. Moreover, from the first, the local governments of the member states banded together on a Union-wide basis to strengthen their positions in the Community with some considerable success.
The same situation is yet to develop the same proportions in other examples of confederal arrangements. It does seem to exist in the West Indies where multi-island republics not only decentralize their powers to each island, but to the towns and villages on each island as well. This may be true of all island republics that have embraced federal or confederal arrangements.
21. For many of them, these arrangements are asymmetrical. As Michael Stevens has pointed out in some detail, both federacies and associated states (asymmetrical federal and confederal arrangements respectively) have become quite wide-spread since World War II. Since he wrote his article, the United States has granted Northern Marianas Islands federacy status and federated states like the Federates States of Micronesia, the Marshall Islands, and Palau associated state status. The Netherlands, which established associated state relationships with the Netherlands Antilles shortly after World War II, has modified those arrangements somewhat and Britain is essentially seeking that kind of status for China and Hong Kong when the letter is returned to the Peoples Republic at the end of the decade. Most of these arrangements have proved to be remarkably stable. West Berlin, which was officially an associated state of the German Federal Republic, became a normal land with the unification with Germany, embracing of East Berlin as well. And some years ago, India conquered Sikkim and made it a federacy rather than an associated state. There are now eleven asymmetrical confederal arrangements in the world.
This conference has continued the increasing discussion of asymmetrical arrangements in federal systems. It seems to me that we can draw at least four conclusions from our expanding consideration of asymmetrical relations:
- They are becoming increasingly common and necessary in different settings to make federal arrangements work.
- Asymmetrical arrangements can be more easily accommodated in confederations and in looser federal arrangements of a confederal character, than in tighter ones such as federations, although they are found in both.
- Every successful federal arrangement has come to include both symmetrical and asymmetrical arrangements with the balance individually tailored in every case. What the balance should be for any particular case, then, must be developed for that situation alone.
- There are a variety of asymmetries and which work in particular situations is not yet subject to any general rule or set of principles.
This postmodern federal phenomenon is hardly recognized for what it is. Few in way of either theoretical or empirical studies have been undertaken from that perspective. Recent analysis of confederation have relied on modern and premodern models primarily. Recent studies of specific postmodern examples have relied upon international relations or functionalist models primarily. Hence what is needed is a considerable amount of work with both the theory and practice of postmodern confederation and confederal arrangements.
22. What remains is the question of adaptation of confederal arrangements within decentralizing federations, unions, and unitary states. It need hardly be said that this is a completely different group of confederal arrangements with its own reasons, justifications and rules. Perhaps the most prominent example of a decentralizing federation was that of Yugoslavia. It is, at this writing, a failed example, although the last word may not have been spoken. Like most failures, there are important lessons to be learned from it.
For example, its move toward confederation was just as authoritarian and quasi-totalitarian in character as its earlier move toward federation after World War II. This has had a real impact on the results. As long as the dictational republican oligarchies still had incentives to hold together as parts of Yugoslavia, they did. Following Tito's death, there was great economic decentralization which allowed, not only every republic, but every locality to make its own international economic policy, including rapidly building up of debt for all of Yugoslavia. This reduced the incentives that had previously existed and introduced great new disincentives, as the more prosperous northern republics of Croatia and especially Slovenia found their economies being weakened by the necessity to provide assistance for the far less developed and even depressed southern republics. This led to their demands for renegotiating the Yugoslav republican arrangement and, ultimately to their secession.
Ill-timed and misdirected outside intervention compounded the situation. When Germany, always close to those two republics, with special ties dating back to World War II if not before, insisted on recognizing the independence of Slovenia and Croatia, it awakened in the Serbs not only their traditional desire to dominate Yugoslavia, but their memories of Slovenian and Croatian collaboration with the Nazis during World War II which led to the massacre of Serbs, Jews, Gypsies and others. Thus began the Civil War. Slovenia's position and the lack of strong non-Slovenian minorities within its borders, plus German recognition, generated the conditions for its successful break away.
Croatia, on the other hand, with a large Serbian population within its boundaries, was invaded by the Serbian-dominated Yugoslav army and only after considerable fighting and outside intervention was the fighting stopped in that republic, which successfully asserted claims to independence over most but not all of its territories, part of which are still in dispute. The scene then shifted to Bosnia, perhaps the most ethno-religiously complex of all the republics, consisting principally of Croats and Serbs, with the Serbs divided between those who had become Muslims during the centuries of Ottoman rule, mostly the urban elites and those who had remained Serbian Orthodox, mostly the rural peasants. The animosities of all those centuries flared again, strengthened by the Serbian fear that the Bosnian Muslims, who had also cooperated with the Germans during World War II, were out to drive them from their lands, which were disproportionately owned by Christian Serbs.
At the present there are almost no incentives for a cease fire, much less for peace and some kind of federal linkage in the ex-Yugoslav republics. Serbia, consisting of Serbia proper and the two once-autonomous provinces Kosovo and Vojvodina, and Montenegro remain as the federation of Yugoslavia. The ethnic Albanians in Kosovo are now in revolt, seeking their own autonomy, and their Serbian government is trying to repress them. Croatia and Slovenia are full recognized independent states. Macedonia is recognized, but its name is not. And then there is Bosnia. Former Yugoslavia stands as a landmark of what to do wrong to sustain the federal solutions of any kind. But the world cannot leave a powder keg active in the Balkans so at the same time, the Western European powers, realizing how difficult it is to convince Balkan peoples to resolve their problems, have limited their intervention to minimal peace-keeping including supply of civilians caught in the war. Peace-keeping intervention comes from three sources: NATO, the United Nations, and the Western European Union. They have managed to more or less contain the war while Europe and the United States put some pressure on all the parties to reach agreement through some kind of new federal arrangement. Europe and the United States are putting some pressure on all the parties to reach some kind of new federal agreement. We may yet have other lessons to learn from that situation.
Canada, on the other hand, another possible example, has exhausted itself with thirty years of constitutional struggle, principally between Quebec and the rest of Canada. The former seeks its own form of confederal arrangement which it calls sovereignty-association. A number of serious changes have been made in the Canadian political system to accommodate Quebec's demands (French Canadians have gained new recognition for their language rights throughout Canada; the Province of Quebec has gained greater authority to enact legislation which its leaders believe is necessary to maintain French as its national language; the province has gained the right to opt out of certain federal programs or to take over those programs on a provincial basis.) All of these have been accomplished on a peaceful basis in a manner similar to the establishment of joint authorities in other confederations.
The history of Canada's federal system is one of general solutions, first through its federal constitution and subsequently, through various attempts to modify it in one direction or another. Its constitutional tradition is only establishing a place for building the networks of authorities that have generated postmodern confederation where general actions are unacceptable to one side or another. The results are heading in the direction of a confederation based on asymmetrical arrangements.
The ex-Soviet Union on the other hand, has moved away from general solutions to networks of authorities, often reluctantly, but making a virtue out of necessity since all of its union republics declared their sovereignty within the Soviet Union even before it was dissolved. In its place, an effort has been made to establish Commonwealth of Independent States, based on a number of different treaties to cover different purposes or functions and at times involving different members from among the republics of the former USSR. Movement is slow. Each new treaty has to be negotiated with all parties but there seems to be a new basis for cooperation emerging out of all of this.
While these difficulties on the way to some kind of federal or confederal relationship are continuing to be addressed slowly as opportunity permits, conflict has broken out primarily in arenas where there are clashing ethnic groups with conflicting claims -- between the Armenians and the Azerbajanis over Ngorno-Karabakh, the former Christians and the latter Muslims with bitter enmity between them, between Russians and Moldavians in Moldavia, and between Chechenya and Russia. Chechenya, which was an autonomous region in the Russian federation, has been taken over by an ambitious general who was able to use the Muslim-Christian conflict to stimulate the one secessionist movement within Russian itself that has gone all the way. Others threaten to do so, but as yet have been contained.
Russia is developing internally as a federation in one way or another. The ex-Soviet Union or most of it at best will become in a confederation, hopefully following a very different path than Yugoslavia. All this is barring unforeseen developments where ethnic conflicts and enmities run deep, even where all parties are of the same faith.
Meanwhile, Czechoslovakia also has separated into become two states: the Czech republic and Slovakia. The latter sought some postmodern-style confederal ties with the former, but the Czechs were happy to be rid of the Slovaks and, with a few exceptions, have not been interested. Senegambia failed because Senegal and Gambia tried to join together in an old-style confederation. They are now experimenting with new-style joint authorities to achieve another kind of federal arrangement.
We cannot know what the future will bring with all of this but the world seems to be in a new dynamic, moving in a direction that is likely to produce many surprises in the near future. The revival of confederal arrangements, itself something of a surprise, seems to be one that will continue and spread as a useful and convenient means for many states and peoples to participate in the new paradigm.
In the meantime, the most powerful economic forces and agents in the world are pressing ahead with globalization. Schemes that have the effect of opening markets are also making it more difficult to maintain communities. There seems to be no practical way to control the pursuit of wealth, regardless of how it is pursued. That is to say, while procedures can prevent or at least control the most fraudulent behavior, there seem to be no procedures acceptable to the shapers of these new markets that can be used to maintain community standards. If, after the age of revolutions at the end of the eighteenth century, commerce came to replace virtue as the principal force shaping politics, in this, the postmodern age, there does not seem to be a contest between the two, or at least not one in which the competition between the two is not eliminated by the prior commitment to commerce. Thus, constitutionalism becomes even more necessary if peace and prosperity are to be maintained within a humane and truly human context.
In the last analysis, we could do worse than to recall Thomas Hobbes' fifteen articles of peace. While we may reject Hobbesian solutions to the problem of maintaining order in a polity, we can benefit considerably from his understanding of what was and remains necessary for humans to make and maintain peace among themselves. Hobbes' ideas were federal in the sense of the third dimension of federalism; that is, they were concerned with the achievement of federal liberty as the only way in which humans could achieve life, liberty, prosperity, and enabled them to pursue their happiness.
In describing his system and stating the terms of his articles of peace, Hobbes used the term "covenant" exclusively. More than a social compact or even a political compact, a covenant is a morally grounded instrument for constitutionalizing agreements. While for a long time, the general consensus was that Hobbes' use of the term did not have to be taken seriously, that at most it was simply following the conventions of the time, closer reading suggests that Hobbes used the term deliberately. Part of his realism was a recognition that a realistic assessment of one's situation would bring one to make the moral commitment necessary to preserve his life, i.e., that moral commitments at certain moments were the only realistic option.
Federalism, which I need not remind this audience comes from the Latin for "covenant," carries that message within it, which both explains why it is too "heavy" a term for many who must seek peace, while at the same time it carries with it the only idea that can be the basis for real peace.