Constitutionalizing Globalization: The Postmodern Revival of Confederal Arrangements
Daniel J. Elazar
The world as a whole is in the midst of a paradigm shift from a world of states, modeled after the ideal of the nation-state developed at the beginning of the modern epoch in the seventeenth century, to a world of diminished state sovereignty and increased interstate linkages of a constitutionalized federal character.1 Over the last several years this has been noted by an increasing number of scholars of both federalism and international relations, as well as statesmen, each group from their own perspective, bringing about a convergence of interests from different perspectives.
This paradigm shift actually began after World War II. Institutionally, it may be identified as having begun in 1944 when the wartime United Nations Allies gathered in Bretton Woods, New Hampshire, to establish a new world monetary system to prevent the world from falling into a disastrous postwar depression of the kind sparked by the Crash of 1929. The United Nations, founded in San Francisco in May 1945 as no more than a league of politically sovereign states with the elevated goal of maintaining world peace, was the next step toward this paradigm shift, although the struggle between the two great powers that led to the Cold War and the Third Worlds struggle for independence prevented it from having the same political impact as the Bretton Woods system in the economic sphere.
Despite the developments in Western Europe which have led to the radical diminution of the political sovereignty of the member states of the European Union, similar developments in other parts of the world, particularly Southeast Asia (the Association of Southeast Asian Nations ASEAN) and the Caribbean, it was not until the collapse of first the Soviet empire and then the Soviet Union itself between 1989 and 1993, that the extensive and decisive character of this paradigm shift became evident to most people, even (or perhaps especially) to those who closely follow public affairs. Most of the latter were, and still may be, wedded to the earlier paradigm that the building blocks of world organization are politically sovereign states, most or all of which strive to be nation-states and maximize their independence of action and decision. While there are a few who have been aware of this paradigm shift as it was taking place and some who have advocated it as a major political goal, for most it seems to have crept up unawares.
Ambassador Max Kampelman, who has taken account of the shift, had referred to it in the following manner:
The interdependence of the world and the globalization of its economy does not imply or suggest the disappearance of the nation-state, which is showing resilience as an important focus of national pride and ethnic preservation....Abba Eban, in a recent analysis of the prospects for confederation between Israel, the West Bank, and Jordan, commented on the apparent contradiction of a politically fragmented world existing alongside an economically integrated one. He suggests that regional confederations may harmonize the contradiction....
For hundreds of years, international society has been organized on the basis of separate sovereign states whose territorial integrity and political independence were protected and guaranteed by an evolving international law. The United Nations Charter, in embodying and reflecting the values of the state system, reaffirmed the principle of non-use of force across international boundaries and the companion principle of non-intervention in internal affairs....
Into this principle, Woodrow Wilson...introduced in te early twentieth century a new principle, that of self-determination of peoples, intended as a blow against colonialism. Its effect, however, introduced mischievous consequences in many parts of the world. Increasingly, violence associated with ethnic conflicts has been justified with assertions of the right of self-determination. What has been misunderstood is the fact that the right of self-determination of peoples certainly does not include the right to secede from established and internationally legitimized nation-state borders....
The world is very much smaller. There is no escaping the fact that the sound of a whisper or a whimper in one part of the world can immediately be heard in all parts of the world and consequences follow.
But the world body politic has not kept pace with those scientific and technological achievements. Just as the individual human body makes a natural effort to keep the growth of its components in balance, and we consider the body disfigured if the growth of one arm or leg is significantly less than the other, so is the world body politic disfigured if its knowledge component opens up broad new vistas for development while its political and social components remain in the Dark Ages....2
Let us understand the nature of this paradigm shift. It is not that states are disappearing, it is that the state system is acquiring a new dimension, one that began as a supplement and is now coming to overlay (and, at least in some respects, to supersede) the system that prevailed throughout the modern epoch. That overlay is a network of agreements that are not only militarily and economically binding for de facto reasons but are becoming constitutionally binding, de jure. This overlay increasingly restricts what was called state sovereignty and forces states into various combinations of self-rule and shared rule to enable them to survive at all. That means federalism, understood in the broadest political sense as a genus involving combinations of self-rule and shared rule rather than as the one species of federalism accepted in modern times federation.
This has been further exacerbated by the postmodern legitimation of ethnic identity. Every group successful in presenting its claim to separate ethnic identity is able thereby to claim recognition as legitimate and entitled to some measure of self-preservation and political self-expression if it seeks them. Not every potential ethnic group does, nor do all seek the same forms of political self-expression, but more than ever before the possibility of such self-determined groups gaining legitimacy has become great.
The implications of this paradigm shift are enormous. Whereas before, every state strove for self-sufficiency, homogeneity, and, with a few exceptions, the concentration of authority and power in a single center, under the new paradigm all states have to recognize as well their interdependence, heterogeneity, and the fact that their centers, if they ever existed, are no longer single centers but parts of a multi-centered network that is increasingly noncentralized, and that all of this is necessary in order to survive in the new world.
The suggestion that we are witnessing a major paradigm shift does not mean to suggest that the outcome will be perfect or even work in every case. Human conflicts remain very real and a new tribalism is the obverse of globalization. In a world that recognizes an increasing number of ethnic groups, some of those groups will come into conflict with the states in which they are located or with each other. Hence, ethnic conflict has become a major world problem and has attracted increasing attention as such, in no little measure because of the horrendous consequences of the more visible ethnic conflicts in our time.
One of the phenomena clearly concomitant with globalization is ethnonationalism.
Ethnic used in this context can be understood as including racial, linguistic, ethnocultural, tribal, and religious communities, some of which are dispersed within many states, some dispersed as a minority within one, some of which are a majrity in one and minorities in others. As the modern state system diminishes in power, ethnic groups reclaim or advance their own claims to national identity. In some cases these claims are old ones and the groups that claim them have been in battle for centuries in their struggle to exercise them.
For every ethnic group that succeeded in gaining control or establishing a state of its own, there are at least ten that remain minorities in other states. Several thousand others are tribes in parts of the world where modern models of statehood did not penetrate until the twentieth century. They never had to surrender their identity, even if they have had to fight to maintain it among the worlds peoples. In a postcolonialist era, they have been able to reassert their claims as ethnic ones and in the era of globalization, to seek support for those claims not only within the states in which they are located but around the globe.
Increasingly, these claims overlap and cannot all be satisfied through separation because of the realities of the situation. It is in this context that many have turned to federal solutions.
Federalism probably has received most attention in recent years as a suggested means to solve ethnic conflicts in a world that has rediscovered the harsh realities of ethnicity and has lost its confidence that modernization will bring about their desuetude. But sober students of federalism have long since recognized that ethnic demands are among the most exclusivist in the world and the same ethnic consciousness that makes federalism in some form necessary, makes it all the more difficult and less likely to succeed. Honesty demands that this sad paradox be recognized and its realities be confronted both by the partisans of ethnic self-determination and by the partisans of federal solutions.
Other reasons for the difficulties with ethnic territorial federalism include the diasporic or migratory character of some ethnic groups that are too dispersed to be beneficiaries of what is basically a territorial relationship. Many are very small ethnic communities (two very imprecise and almost undefinable terms) that cannot properly be accommodated within the large polity, at least not to their satisfaction. On the other hand, too small a polity cannot provide for the constitutionalizing of internal ethnic divisions without running great risks.
In essence, a federalism based upon ethnicity requires a high level of coincidence between the ethnic group in question and the territory it occupies. Where more than one ethnic group occupies a territory, that itself becomes problematic. Where one or only one does or where it is overwhelming, it may be tempted to secede rather than maintain a federal relationship with those whom it sees as its enemies. Under such conditions, only the sense of interdependence that goes beyond desires for separate ethnic identity can make federal relationships work. In such cases, confederal arrangements may be preferable or more workable.
During the modern epoch, the
new worlds of the Western and Southern Hemispheres were settled by emigrants from Europe who founded a number of what Duchacek referred to as ethno-ideological states, of which the United States was the first and preeminent example, and Israel, established 1948, the last.3 These states only developed on un- or, more accurately, undersettled territories by emigrants who were, at least originally, from the same or similar ethnic stock in the
old world and who settled in the new in pursuit of the same or similar visions or goals. There they amalgamated into new peoples on the basis of those visions and goals.
This could not be achieved in the old world. For example, the French Revolution attempted to do the same thing in France, an old, indeed, the first of the Western European states, but the historical baggage which France carried with it greatly limited the ideological transformation possible in that country. The twentieth century ideological movements Communism, Fascism, Nazism, and others tried to do the same. Not only did all fail, but they did so after bringing great pain and suffering to the countries in which their experiments were tried. Hence we must conclude that ideological transformations are not likely to replace ethnic identities and so offer no way out of these problems.
On the other hand, there are less than two hundred states in the world defined as politically sovereign and thousands of ethnic groups or potential ethnic groups. Thus many accommodations will have to be made to allow ethnic groups an effective and operative identity within the state system. Even if the five hundred plus federated or constituent states of federal unions are added to the politically sovereign states, we still have something like 3,500 into 700 political entities. In this period of the revival of ethnic identities and indeed the generation of new ethnic identities in some places and with some groups this is clearly a task for federalism.
Perhaps the solution lies in the extent of the federal bonds as much as in their depth. For most of the modern epoch, at least since the establishment of the American federation through the Constitution of 1787, most of the world has looked upon federalism as federation pure and simple. Other forms of federalism, especially confederation and confederal arrangements which had been considered federal until 1787, not only ceased to be functional but ceased to be regarded as reasonable federal options for governmental organization.
The new globalization has brought with it new kinds of migration. Whereas in the past migrations tended to be movements of peoples, individuals, and families from a point of origin to a new destination for conquest or permanent settlement, and either replacement of or absorption into the indigenous population, we now have a continuous migration of peoples, individuals, and families throughout the globe in search of economic opportunity or a better quality of life. Sometimes these migrants are accepted for absorption in their new homes, sometimes they are not and are treated as if they are still attached to their old ones.
In fact, many have become
guest workers who may never go back to their original homes but are still not absorbed within their new ones. Some are temporary migrants who settle for what they, themselves, consider to be a limited period and seek to maintain their homeland ties. Still others are seasonal migrants. These range from migrant farm workers to the very wealthy who go to live in different climates for different seasons. Still others have resettled in new countries but want to retain serious ties of some kind with their mother country. All of these trends lead in the same direction, to the development of diasporas and various forms of state-diaspora relationships which also affect the old limits of state sovereignty and require new constitutional relationships.
The old state system was the product of the modern epoch. Given practical form by the new nation-states of Western Europe such as France in the late Middle Ages or Prussia in the eighteenth century, these states rested on the idea that by concentrating power in a single head or center, the state itself could be sufficiently controlled and its environment sufficiently managed to achieve self-sufficiency or at least a maximum of self-sufficiency in a world which would inevitably be hostile or at best neutral toward each states interests and in which alliances would reflect temporary coalitions of interests and which should not be expected to last beyond that convergence. The old maxim:
No state has friends, only interests, typified that situation.
Centralization and self-sufficiency were the first two defining elements of the modern state. Indeed, the first powerful nation-states were monarchies, advocates of the divine right of kings to protect central authority and power. After a series of modern revolutions, first in thought led by people like Hobbes, Spinoza, and Locke, and then in practice, kins were stripped of their exclusive powers, even in principle, and new power centers were formed, presumably based upon popular citizenship and consent but in fact with the same centralized powers, only vested in boards and managers, ostensibly representative assemblies, and executive officers speaking in the name of the state. In only a few cases had earlier dispersions of power been constitutionalized and needed to be taken into consideration. This led to the establishment of federations, forms of federalism with clear lines of national supremacy and, at least for purposes of foreign relations and usually defense, extensive national powers. While these may have been mitigated de facto, de jure they were always there to be used.
The third defining element of the nation-state was its striving for homogeneity. Every state was to be convergent with its nation and every nation with its state. Where people did not fit easily into that procrustean bed, efforts were made to force them into it. This was done either through internal pressure (as in France where the French government, in the name of the state, warred against Bretons, Occetanians, Provencals, and Languadocians, among others, even denying them the right to choose names for their children that did not appear on the official Francophone list), or external (as in the Balkans where small national states with minorities outside of their state boundaries regularly warred with one another in an effort to conquer the territories where their fellow nationals lived and either to exterminate or expel those not defined as being of the same nationality, as in Bosnia today). As a result, modern wars were basically of two kinds, either imperialistic wars designed to enable more powerful states to become even more self-sufficient by seizing control of populations, territories and resources that could be used in that direction, or nationalist wars designed to reunite parts of the nation with the national state.
In the end, none of these three goals could be achieved. In many cases they were not achieved at all; in others they were achieved temporarily until those disadvantaged by them succeeded in revolting. In still others they proved to be unachievable by any sustainable means. Usually a combination of all three factors prevented their attainment.
As the late Ivo Duchacek, himself a Czech and thus exposed to the futility of those efforts in Middle Europe between World Wars I and II, pointed out in the 1970s, of the then-existing states in the world, 90 percent contained minorities of 15 percent or more of the total population within their boundaries. Of the remaining 10 percent, almost all had large ethnic minorities of their own living outside of their state boundaries.4 Since he documented that fact, matters have gotten more complex, as we see by the great resurgence of ethnic conflict in one form or another throughout the world, a factor that has become one catalyst for the new paradigm in its search for ways to overcome those conflicts.
Self-sufficiency, in reality, was never achievable. It is well to recall that modern economic liberalism, which was essentially based on the principle of free trade, emerged shortly after the emergence of modern statism to challenge the economic basis of statism, expressed through mercantilism which sought self-sufficiency. In part, economic liberalism emerged because of the problematics of mercantilism, which were brought to the fore, inter alia, by the American Revolution against Great Britain. When that policy failed, imperialism replaced it as the means for these modern nation-states to gain the end of self-sufficiency. Imperialism failed by the middle of the twentieth century, not only because the peoples subjugated rejected it, but because a democratic moral sensibility came to affect the subjugators.
Nor was free trade, in the nineteenth century liberal sense, the answer since it was an extension of the nineteenth century conception of the
automatic society, that is, the conception that government could be eliminated or all but, to be replaced by
the market or
the march of history, or the unshackling of humans original goodness, or some other
rocess that was believed to work automatically. Free trade suffered from the same defects as those conceptions when they were applied in the real world.
At the beginning of the modern epoch, those who conceptualized and brought about the revolutions of modernity understood that all society was framed by government and that the institutions of government were necessary to give a society its identity and character. In an effort to establish more space for private social life and for individualism, they developed the idea of
civil society which preserved that understanding of the role of government in society, which dated back to the beginnings of civilization, but recognized three separate or separable spheres: governmental, public but non-governmental (voluntary associations), and private, each of which they saw as absolutely essential for civil society to realize itself along the lines envisioned. In time, however, their theories were submerged into a kind of mechanical understanding of
society as superseding civil society and existing in and of itself, with or without government.
The ideologies of the nineteenth century, however widely separated they were in how they conceptualized humanity and what they wanted to do to achieve the ideal society they envisioned, shared this in common. They all believed that their goals could be achieved by releasing automatic mechanisms which would
naturally move things in the right direction. This is true whether we speak of laissez faire which saw the market as the appropriate automatic mechanism, anarchism which saw the goodness of humanity once released from the shackles of civilization as bringing about the desired result, or Marxism which saw historical processes as doing that, or whatever.
All of this was topped off by the introduction of nuclear energy into the equation. The atomic bomb and its successors made it clear to all but the worlds crazies that absolute sovereignty was no longer possible, that even the strongest power in the world was limited in what it could do to make its power felt without generating a catastrophic reaction that would be self-destructive. The
balance of terror of the Cold War years generated by Soviet imperialism but restrained by their nuclear realism, was an effort to harness the old state system to new realities.
Obviously a balance of terror could only be a temporary device. As both great powers and many lesser ones feared, others less interested in maintaining a balance would acquire the same weapons of terror in due course with unforeseen but not very hopeful consequences. So within the balance of terror, especially outside of the very oppressive Communist bloc which tried to use new versions of old imperialist techniques to preserve the power of its leading state and ruling class, efforts began to be made to go beyond the old system to find new ways to gain contol of the situation to everyones mutual satisfaction.
Thus was born the European Community, now the European Union, initially a network of treaties establishing functional linkages between the various states of Western Europe. It dates back to 1949, the very beginning of the post-modern epoch, although the first treaty, the European Coal and Steel Community, formally was signed in 1958. At first the functional links were anchored on the effort to bring the two great continental European rival states, France and Germany, together on a peaceful basis so as to prevent future wars between them. In due course the European Community evolved from consultative agreements to joint functional authorities established by international treaty, to confederal arrangements, to, with the adoption of the European Union Treaty of Maastricht, confederation. Soon similar efforts were underway in other parts of the world, in part influenced by the EC/EU experience, stimulated by the recognition of similar needs.
Simultaneously, the two great Cold War power blocs, under the leadership of the superpower dominant in each, tried to build ostensibly looser but equally binding links in the realms of economics and defense. Those fostered by the Soviet Union were old fashioned imperial ties in a new ideological guise. Hence, it was not surprising that they collapsed with the collapse of the Soviet empire in the late 1980s and early 1990s.
Those developed for the free world were developed under the leadership of the United States which had the generous view that it was in its interest to rebuild Europe and make its components into partners, even though that might bring with it moments of heartburn for the U.S., because in the long run the results would be better for all. So after World War II the United States rebuilt both its allies and its former foes in Europe and the Far East as well, generously providing from its own resources to do so.
In a sense, the postwar world backed into the new paradigm and did not seek it per se. The victors saw as their first task after World War II the resurrection of the old state system with a minimum of modifications. That is to say, they undertook reconstruction of the former Axis Powers on a rehabilitated basis so that they could be readmitted to the family of nations, reconstruction of the war-torn Allies so that they would be able to function again as equal members of the world community of states, and various collective security arrangements to try to insure world peace, of which the United Nations was one. As a result of the beginning of the Cold War, the UN became more symbolic than effective, although it was fortuitous that the USSR and its satellites had walked out of the UN before the outbreak of the Korean War which left that organization free to take a one-time stand on an issue of that magnitude and to throw its support and cover behind the U.S.-led defense of South Korea.
Even before that, a new world monetary system had been established through the Bretton Woods Agreements, formulated at the United Nations Monetary and Financial Conference held at that site in New Hampshire in 1944. It resulted in the establishment of the International Monetary Fund and the International Bank for Reconstruction and Development. While little attention was paid to their political implications at the time, their subsequent development and the establishment of an embryonic world economic order in time has had very real political consequences.
In the meantime, the North Atlantic Treaty Organization (NATO) had been set up as a Western collective security pact. In retrospect, we can see that as a major step toward the new paradigm. While it was far from establishing a confederal arrangement, it did establish what Karl Deutsch felicitously referred to as a
security community under the aegis of the United States, then clearly the only Western superpower.5
On the other hand, while efforts to establish federations or decentralized states in West Germany, Japan, and Italy successfully served as part of the rebuilding process and a small number of federations succeeded in surviving decolonization in coutries such as India, Pakistan (more on paper than in practice but still surviving), Malaya-Malaysia, and Nigeria, efforts to federalize aggregations of pre-existing states as federations, such as the abortive United States of Europe, did not succeed at all. In the 1950s, however, the Western European countries did begin to pursue what they called functional rather than federal solutions to their problems of union on a more limited basis. These slowly evolved into confederal arrangements to take the lead in bringing about the paradigm shift.
So, too, were similar efforts initiated in the Caribbean. At first Britain tried to establish a full-blown West Indies Federation. It failed but confederal arrangements uniting most of those same islands emerged out of the wreckage. Islands are, by definition, insular; hence federation was too much for them, but, although they sought independence, they also perceived that they needed to share certain functions, e.g., currency, higher education, a supreme court.
Similarly, Spain, in an effort to preserve the older statist model but within the context of its economically stronger peripheral regions drive for autonomy, made some wise decisions to introduce regional decentralization throughout the country. Thus its leaders launched it on the road to federalization, at the same time controlling the secessionist impulse of the Basques, Catalans, and others. In the 1970s, Italy effectuated the regional system that the Allies had required it to introduce into its immediate postwar constitution. Belgium, confronted with intensifying ethnic problems between Flemings and Walloons, adopted federation in the 1980s, in an effort to resolve its problem. Thus without in any conscious way abandoning the state system, the federal paradigm in essence snuck up on an increasingly substantial and significant segment of the world.
In the other direction is the Netherlands, which had become, according to its constitution, a
unitary decentralized state after the Napoleonic Wars, moving to a form of confederation when it withdrew from its empire. Its Caribbean colonies were transformed into federacies, that is to say, states that were internally independent but were linked to the Netherlands itself in an asymmetrical federal relationship, formally designated the Kingdom of the Netherlands with its own charter, but with its major collective governing institutions those of the Netherlands proper.
All of this was much enhanced by the new economic realities which led to constituent states of existing federations having to insert themselves in the international system as states for purposes of economic development. That drive has only been gaining in momentum since it began.
For example, despite the prohibitions on state involvement in foreign affairs which the U.S. Constitution of 1787 made an exclusively federal power, by the late 1950s several had opened offices overseas to promote their foreign commerce.6 This trend has continued and by now is an accepted aspect of American foreign economic policy.7
The Canadian provinces have gone even further in this respect. The Canadian government has recognized this involvement and has provided for provincial interest sections in Canadian embassies abroad and Ministry of External Affairs assistance to provinces wanting to conduct their own foreign relations across cultural as well as economic spheres.8 Quebec has been a leader in this regard for its own nationalistic reasons, but the other provinces have not been far behind.
In the mid-1980s when Duchacek summed up
The International Dimension of Subnational Government, he noted that not only did Quebec have 22 offices abroad, but five other provinces had a total of 21 offices. Alberta had permanent representatives in Los Angeles, New York, Houston, Tokyo, London, and Hong Kong, and had established special relationships with the island province of Hokkaido in Japan, the province Heilongji in the Republic of China, and the province of Gangweon in South Korea.
Thirty-three U.S. states maintained 66 permanent offices in 17 countries, 19 of which were in Tokyo and 1 more in Brussels. Alabama, for example, had a state office in London, a fulltime person in Berne, a part-time representative in Frankfurt, and a consulting firm on retainer in Tokyo. In some cases, the major cities in particular states take over a major share of the overseas representative function, in essence promoting the whole state along with their own self-promotion. European countries have followed suit to the point where German federalism scholar Franz Gress has coined the term
intermestic to suggest the essential combination of international and domestic politics involving the German lander.9
Transborder relations among cities, cantons, federated states, and provinces in Europe and North America had begun to develop even earlier. Most European constitutions, especially the newer ones, make provision for such relations on the part of their federated states, especially with immediately neighboring polities. Since the European states and their constituent governments are not separated from those of other nations by bodies of water but share common borders with them, they have many more transborder problems which need to be resolved in more appropriate arenas than the national capitals. In addition, the close ties among states established in the European Union affect the constituent governments as well.
In Europe, especially, transborder relations among cities are prominent since they involve daily cross-border commuting of workers at all levels as well as normal borderlands area relationships, so much so in some cases that the border is often reduced to a formality. For example, in the tri-state region around Basle, Switzerland, involving several Swiss cantons, the German state of Baden-Wurtenberg, and the French province of Alsace, not only is there heavy transborder commuting, but the Basle airport is actually located in France and connected to Basle by a road in French territory that is accessible only through the Swiss city, while the Basle railroad station serves the neighboring German land as well. Similar arrangements can be found in other Western European borderlands.10
In North America, elaborate systems of transborder relations have developed along the U.S.-Canadian and U.S.-Mexican borders between the states and provinces of those three countries,11 covering everything from allocation of water resources to common law enforcement efforts. After World War II the number and extent of these arrangements increased geometrically.12
During the Kennedy administration in the United States early in the 1960s, the American states also began to find their way into the international arena. Prior to that, the conventional constitutional wisdom that matters of foreign affairs were the exclusive province of the federal government had prevailed, except where there was a direct domestic state interest, usually having to do with the immigration of one group or another (e.g., the efforts on the part of California to exclude Japanese immigrants at the turn of the century) or matters of political concern to elected office-holders (e.g., the governor of Michigans vocal support for Ukrainian and Polish independence during the Cold War years). Then, encouraged by the U.S. Department of Commerce, states began to seek markets abroad for their manufacturers to encourage foreign investors to invest within their boundaries and even to implement American technical assistance programs in the developing world.13
By the 1970s the line between politically sovereign and federated states was beginning to be blurred. By the 1990s there had almost come to be one
seamless international system including both the 180 plus
politically sovereign states and the 350 plus federated (or constituent) states.
Power-sharing arrangements are being tried even in difficult situations. The beginning steps toward a tentative confederal arrangement between Israel, the Palestinians, and Jordan are being taken in the field of transborder connections, particularly with regard to water and power, but also involving nature protection and recreation.
Duchacek wrote before the development of the lates interactive telecommunications and video techniques which fostered the ability for people to communicate with each other without passing through any national clearinghouse or system of control by directly entering cyberspace to encounter their counterparts in other countries. The telephone and the photocopier did their share to bring down the Soviet Union. The fax and Internet are infinitely more powerful. The possibilities of these new forms of communication are just beginning to be realized.
Thus the new paradigm began to emerge slowly, without conscious planning, and gained momentum as time passed. In the mid-1970s even the European Community looked to many like it would not survive. Then in the 1980s it picked up momentum along with all these other forms of federalism.
The growing weakness of the Soviet empire and the Soviet Union itself contributed to the growing transformation of worldwide international treaty arrangements such as the General Agreement on Trade and Tariffs (GATT) and the then newly established Council on Security and Cooperation in Europe (CSCE) into more constitutionalized leagues that, while remaining dependent upon their member states, also had greater means to bring those member states to reach enforceable multilateral agreements on specifics within the context of their mandates. Each of these cases is a story in itself, a story that needs to be told to better understand the full dimensions of the paradigm shift. Not only did GATT maintain a relatively open trading world for decades, but each round of renegotiations expanded the agreements for open trading and made it harder for any states, including the most powerful, to resist them. After it seemed as if one impasse after another would lead to the collapse of GATT, the 1993 round reached closure as the most extensive of all. This was reflected structurally and symbolically in that part of the agreement which provided that on January 1, 1995, GATT would become the World Trade Organization (WTO), no longer structured as a league but as an international organization.
The CSCE became the vehicle for forcing the Soviet Union under Gorbachev into a program of liberalization which ultimately led to its downfall. It did so by insisting on the application of Western European human rights standards to the Eastern bloc, slowly but inexorably. Today the CSCE has become even further institutionalized as the OSCE and has become a more powerful guardian of human rights for all of Europe.
In retrospect, the emergence of globalization and the development of appropriate federal arrangements went hand in hand, but had the basis for globalization not first been established through the Bretton Woods Agreements, the United Nations Charter, and the General Agreement on Trade and Tariffs, there would have been no world frameworks secure enough for federal arrangements to develop the way they did; that is to say, not as state enlargement but as state transformation.
The new globalization is accompanied by a new localization and new forms of localism which in some cases are quite parochial. The two seem to go hand in hand as the world requires a larger scale and arena for some things in particular, economic development, defense, environmental protection, and human rights but also seeks smaller scales and arenas to preserve others in particular, issues of community and identity. In fact, globalization offers greater opportunities to move in both directions. That movement, however, requires political structuring for governance anchored in appropriate constitutional frameworks.
Within this evolving structure, states remain in place, but they become recognizedly pluralistic, if not polyethnic. Icreasingly, many states have come to recognize their polyethnic character and stop or at least significantly reduce their efforts at homogenization. The full consequences of these changes cannot yet be known, but in conjunction with globalization will undoubtedly seriously transform the state system into a network of service states with less emphasis on their exclusivist character.
As the dust settles in the 1990s we find the following: one, more federations than ever before covering more people than ever before. These can be seen as the foundation stones of the new paradigm. At present there are twenty-one federations containing some two billion people or 40 percent of the total world population. They are divided into over 350 constituent or federated states (as against 180 plus politically sovereign states).
Attached to or along side of those federations are numerous federal arrangements of one kind or another, usually asymmetrical (federacies and associated states), whereby the federate power has a constitutional connection with a smaller federated state on a different basis than its normal federal-state relationships, one that preserves more autonomy for the small federated state or is based on some relationship between a Westernized federation and its aboriginal peoples. The United States, for example, has federacy arrangements with Puerto Rico (recently reaffirmed by the people of Puerto Rico in yet another referendum) and the Northern Marianas. It also recognizes several hundred Native American (Indian) tribes within it as
domestic dependent nations with certain residual rights of sovereignty and certain powers reserved to them. Those now are gaining some real meaning, whether through responsible tribal self-government or through revenues produced for the tribes by the opening of gambling casinos on tribal lands. The Federated States of Micronesia, the Marshall Islands, and Palau, formerly Trust Territories of the United States captured from Japan in World War II, have been given their independence as associated states tied to the United States for purposes of defense and development.
Indeed, one of the manifestations of the new paradigm is the way in which federalism has played a role in restoring democracy in various states. Spain has already been mentioned. Federalism was also reflected in the restoration of democracy in Argentina and Brazil. Indeed, in Brazil the existence of federalism even preserved a modicum of free government during the military dictatorship through the state governors who could remain in power and even have limited elections because of their strength, both political and military. It is an untold story of the Brazilian experience under the generals rule that Brazils states kept their state police forces under the governors control. In the larger states, those forces constituted up to 40,000 trained men who were better organized and trained than the Brazilian army, which was largely composed of conscripts serving limited terms. Thus the governors could fully counter every federal threat to use force.14 Federalism also has been a means of trying to further extend democracy in Venezuela where the state governors, recently transformed into elected officials, played a crucial role in protecting democracy during the last attempt to oust the president, and seems to be an instrument in slowly transforming Mexico from a one-party into a multi-party polity.
Even more dramatic was the way in which federalism was used to reunify Germany after the collapse of the German Democratic Republic. The territory of the GDR first was redivided into five federated lander (federated states) and then those five states joined with the eleven federated lander of the German Federal Republic plus Berlin (previously an associated state) to form the expanded federal republic.
Beyond this circle of federations there have emerged the new confederations, such as the European Union, that bind federations (such as Germany), unions (such as Great Britain), and unitary states (such as France) in new-style federal arrangements. Others in this category are the Commonwealth of Independent States (CIS), the successor to the SovietUnion, and the Caribbean Community, constructed around and beyond CARICOM, the Caribbean Common Market, the heir to the failed West Indies Federation. While both of the latter are not as far along the road to confederation as the EU, both are moving in that direction, each in its own way.
Confederal arrangements normally are easier to achieve and maintain when the states being linked are heterogeneous than homogeneous. The more the states approximate the ideal of the nation-state with one nation or ethnic group in one state, the harder it is to combine that state with others. The one possible exception to that rule was when the states of Western Europe formed the European Community, now Union, but a look beneath the surface of national homogeneity in every major Western European state reveals a diversity of ethnic groups, forcibly submerged by the nation-states, that had already begun to resurface and to develop their own crossborder connections even without the new confederal system.
Many of the states within these new confederations have developed federacy and associated state relations of their own or have decentralized internally, reflecting another dimension of the paradigm shift. Take, for example, Portugal and the Azores or Monaco and France.
The looser league arrangements mentioned above, such as the CSCE in Europe and NATO for the North Atlantic community, which have moved beyond their standing as groups of states linked by treaty to acquire certain limited but nonetheless real constitutional powers, represent the next circle beyond those federations and confederations. In the 1990s, these began to be supplemented by regional free trade areas, the oldest of which, linking Belgium, the Netherlands and Luxembourg as the Benelux states, essentially has been superseded by the European Community, but the newer of which, such as the North American Free Trade Area (NAFTA) or the Association of Southeast Asian Nations (ASEAN), offer all sorts of promise for the future of their members and for future expansion. For example, the New Zealand-Australian Free Trade Association, which came into existence toward the end of World War II, has begun to integrate those two countries in economic and social fields beyond trade. Increasingly, the relationship is between New Zealand and the states of Australia, rather than simply a bilateral linkage. To make the point even sharper, the recent action of the Gulf Cooperation Council in rescinding the Arab Leagues secondary and tertiary boycott of Israel was something that those six states, which include Saudi Arabia, which is very cautious as an individual state, could only do collectively. As individuals they would not have been able to take such a step in the absence of prior Arab League action.
Last but hardly least are the similar arrangements on a worldwide basis. As we have seen with the latest round of GATT negotiations, these, too, are becoming more than treaties. Despite the fact of the WTO formerly being merely a treaty, the worlds leading industrial nations have discovered that they could not live without it so they had to resolve the serious difficulties among them, whether they liked it or not, and move onward.
Finally, there are those international organizations whose standing is such that otherwise politically independent states are virtually compelled to participate in them and to accept those organizations policies as their own, beginning with the International Postal Union, established in the nineteenth century to regularize world communications. There has been a steady, if uneven, growth in such organizations.
Thus, on the threshold of the third millennium of the Christian era and in the second generation of the postmodern epoch, the paradigm shift seems to be well advanced and moving right along. Indeed, even the most troubled spots of the first generation of the postmodern epoch seemed to be choosing federal paradigms as ways to resolve their presumably
insoluble conflicts, viz: (1) the Commonwealth of Independent States in the former Soviet Union; (2) the new near-federal constitution in South Africa; (3) the Israel-Palestinian Declaration of Principles, Cairo Ageement, and the Israel-Jordan Peace Treaty, which rest upon the ability of the two sides plus Jordan to establish a network of joint authorities as well as to further develop their separate entities either as states or in the manner of states; and (4) most recently, the British-Irish declaration on Northern Ireland and subsequent local cease-fire declarations, which opened the door to peace negotiations for that troubled area, also along lines that will combine self-rule and shared rule, although still very vague ones.
What is equally interesting is that international law already has undergone considerable change to accommodate the new turn.15 Since international law in its present form developed out of the Westphalian state system, it had become one of the major barriers to the shift away from statism. Most of those engaged in international relations on a professional basis had studied international law and its concepts and had become wedded to the Westphalian view of state sovereignty, a view that they were influential in helping to continue to dominate conventional thinking about international and inter-state arrangements. As political scientists have been saying, while in periods of calm the law may shape reality, in periods of change the law will in the end follow reality and find ways to accommodate and justify it.
Much remains to happen before this new paradigm becomes as rooted as the old one. Included among what has to be done is for scholars and public figures to recognize the new paradigm for what it is, to seek to understand it and to promote it, each group in its own way. For what can be said about this new paradigm is that while the old state paradigm was a recipe for war more often than not, the new federal one is equally a recipe for peace, if it works.
1. I use the term
federal here in its larger historical sense, not simply to describe modern federation but all the various federal arrangements including federations, confederations and other confederal arrangements, federacies, associated states, special joint authorities with constitutional standing, and others.
2. Max Kampelman,
"Negotiating Toward a New World: The Art of Conflict Resolution through Diplomacy," Speech to Bnai Brith, Jerusalem, 13 October 1993.
3. Ivo D. Duchacek,
"Antagonistic Cooperation: Territorial and Ethnic Communities," Publius, vol. 7, no. 4 (Fall 1977):8-9.
4. Ivo Duchacek,
"External and Internal Challenges to the Federal Bargain," Publius, vol. 5, no. 2 (Spring 1975).
5. Karl Deutsch and Sidney Burrell, Political Community and the North Atlantic Area (Princeton: Princeton University Press, 1957).
6. See Dennis Palumbo in Daniel J. Elazar, ed., Cooperation and Conflict (Ithaca, Ill.: F.E. Peacock, 1969).
7. John Kincaid,
"American Governors in International Affairs," Publius, vol. 14, no. 4 (Fall 1984):95-114; Conrad Weiler,
"GATT, NAFTA and State and Local Powers," Intergovernmental Perspective, vol. 20, no. 1 (Fall 1993-Winter 1994); Michael Burgess and Franz Gress,
"German Unity and European Union: Federalism Restructured and Revitalized," Federalisme (1993):121-145; Alice M. Rivlin, Reviving the American Dream: The Economy, the States, and the Federal Government (Washington: Brookings Institution, 1992), and Alice Rivlin,
"American Federalism: An Economic Perspective," in Knop et al., eds., Rethinking Federalism (Vancouver: University of British Columbia Press, 1995), pp. 196-200; John Kincaid,
"Constituent Diplomacy: U.S. State Roles in Foreign Affairs," in Constitutional Design and Power-Sharing in the Post-Modern Epoch, Daniel J. Elazar, ed. (Lanham, MD: Jerusalem Center for Public Affairs and University Press of America, 1991), pp. 107-142.
8. Filippo Sabetti and Harold M. Waller, eds.,
"Crisis and Continuity in Canadian Federalism," Publius, vol. 14, no. 4 (Winter 1984).
9. Franz Gress,
"Interstate Cooperation and Territorial Representation in Intermestic Politics", "Publius" (forthcoming).
10. Ivo D. Duchacek,
"The International Dimension of Subnational Self-Government," Publius, vol. 14, no. 4 (Fall 1984):5-32; Susan J. Koch,
"Toward a Europe of Regions: Transnational Political Activities in Alsace," Publius, vol. 4, no. 3 (Summer 1974):7-24; James W. Scott,
"Transborder Cooperation, Regional Initiatives and Sovereignty Conflicts in Western Europe: The Case of the Upper Rhine Valley," Publius, vol. 19, no. 1 (Winter 1989).
11. Ivo D. Duchacek,
"Transborder Overlaps between Three Federal Systems: From the Beaufort Sea to Belize," paper presented in San Diego, Western Social Science Association, 28 April 1984.
12. Susan J. Koch,
"Toward a Europe of Regions: Transnational Political Activities in Alsace," Publius, vol. 4, no. 3 (Summer 1974); James W. Scott,
"Transborder Cooperation, Regional Initiatives and Sovereignty Conflicts in Western Europe: The Case of the Upper Rhine Valley," Publius, vol. 19, no. 1 (Winter 1989).
13. Dennis Palumbo, American Politics (New York: Appleton-Century-Crofts, 1973); John Kincaid,
"The American Governors on International Affairs," American Confederal Experiences, Past and Present, ed. Daniel J. Elazar (forthcoming).
14. Interviews in Brazil by the author, 21-30 July 1980.
15. Moshe Hirsch et al., Yerushalayim leAn? (Jerusalem: Makhon Yerushalayim LeKheker Yisrael, 1994); Ruth Lapidoth, Yerushalayim-Heibetim Mediniim uMishpatiim (Jerusalem: Makhon Yerushalayim LeKheker Yisrael, 1994); Enrico Molinaro,
"Gerusalemme e i Luoghi Santi," La Comunita Internazionale, vol. 2 (1994).