Extending the Covenant: Federalism and Constitutionalism in a Global Era

Daniel J. Elazar

In the latter half of the nineteenth century, Abraham Kuyper, the greatest Dutch political leader of his time, developed a model for extracting the Netherlands and Dutch politics from the morass which had impoverished the country and made its governance extremely difficult. Nearly a century later political scientists gave that model a name, in English, consociationalism. Kuyper's achievement, which lasted for two biblical generations (eighty years), played a major role in the regeneration of the Netherlands into the peaceful and prosperous country that it has become.

Kuyper's task was to deal with a major paradigm shift in Dutch political affairs which had occurred as a result of the French Revolution and the Napoleonic occupation of the Netherlands. Those great events were the proximate causes of the destruction of the regime of the United Provinces which had provided the country with a republican political system from the time of the Dutch revolt against Spain to the French conquest. As we know, by the time the French came, that regime was in serious difficulties because of the way its institutions had ossified or been corrupted, but the degree to which that regime was destroyed in the Napoleonic period went beyond the expectations of the Dutch themselves at the time.

After the liberation of the Netherlands the Dutch tried to restore elements of the old territorially based confederation patriarchal commonwealth of the United Provinces as a liberal "unitary decentralized monarchy," the best that they could do to reach out toward federation at the time. But despite this constitutional provision, the political distribution of power of the restoration era led instead to monarchic centralization under very conservative political leadership, a system which did not serve the country well and only perpetuated and exacerbated its political and economic difficulties. The old homogeneities that accompanied the territorial divisions were no longer present. Instead, the entire country was divided among Calvinists, Catholics, and secular liberals. The inability of those three groups to find a way to share power was the root of the problem and it was Kuyper's genius that enabled them to finally do so in such a way that all three were sufficiently content to support the regime.

This globalization has been most marked in the economic sphere, allowing the development of arrangements of a political and social as well as an economic character that increasingly require some kind of constitutionalization. Unlike the Netherlands in Kuyper's time, this is a need born out of increasing prosperity. Like it, it must confront and deal with an increasing recognition of diversity among equals only this time in the international arena. I would suggest that the only kind of constitutionalization that can work in such a situation is the application of federal principles and arrangements grounded in federal -- i.e. covenantal -- norms and aspiring to a federal political culture. Clearly, this would not be the kind of federalism that we have come to know from the modern epoch, that is to say, federation. That is no more possible or even desirable than the restoration of the pre-Napoleonic confederation was in the Netherlands in 1815. What is needed is an arrangement which is faithful to the spirit and practice of federalism but involving a new inventiveness. If the specifics of Kuyper's solution can at most provide only part of our answer, the innovative genius of his vision will serve us in good stead.

As a theologian as well as a politician, Kuyper could very well have thought of his experiment with consociationalism as non- territorial federalism and understood it to be in the tradition of covenantal politics. If he did not, we certainly can and we can see current efforts to constitutionalize globalization in the same light as further extensions of the covenantal or federal principle in human governance.

The world today is filled with discussions of globalization, especially in the three spheres deemed to count most for human progress: economics, human rights, and communications. "Progressive" voices of various shades of opinion are discussing ways in which this globalization can be advanced so as to increase the opportunities for human happiness, while "conservative" voices are bewailing globalization as robbing the worlds states of their political sovereignty and the worlds peoples of their cultural heritage for what is perceived as no more than a mess of pottage, and one likely to turn sour at that.

Globalization is indeed upon us. While its extent and effects may be exaggerated from time to time, it is no myth. The benefits of globalization are touted widely and prominently -- open markets, free trade, greater prosperity for more people, the development of a common world culture, greater respect for peoples no longer seen as distant and unfamiliar, greater respect for the human rights of individuals and groups along Western models. Yet at the same time, the "downside" of globalization has also become evident -- the weakening if not destruction of local cultures and local and national liberties by great international bodies, particularly private corporate commercial bodies, in the name of those benefits. In many respects globalization has crept up upon us and the mechanisms developed to promote it such as GATT or the European Union and their regional counterparts have acquired substantial power with minimal constraints, in practice if not in theory.

Not surprisingly, given the democratic aspirations of our times, closely following on the heels of globalization have come efforts to anchor it in appropriate constitutional frameworks. The need for new constitutional arrangements becomes more apparent to lovers of democracy and liberty as globalization advances. Hence, the effort is acquiring a greater level of consciousness on the part of those engaged in it. However, it is still only at the beginning of being noticed by those not so intimately involved. This constitutionalization is being assisted by the renewed desire for strengthening the local and interpersonal dimensions that have come along with it.¹

Much if not most of what is happening to bring about this constitutionalization is what classically has been known as federalism; that is to say, the combination of constitutional choice, design, and institution-building to accommodate both existing states and trans-state linkages in a federalist manner by combining self-rule and shared rule in such a way as to insure that shared rule will be confined only to those functions where it is absolutely necessary or clearly more useful to the polities and peoples involved.

Not only do these efforts rest upon the principles of federalism, whether acknowledged or not, but in their specific applications they represent a certain species of that genus -- the confederal species. For many, this may be a surprising development -- for much of the modern epoch (mid-seventeenth to mid-twentieth centuries), confederal arrangements were in eclipse as the worldwide thrust toward statism made such "loose" constitutional arrangements look flimsy as compared to federation, a species of federalism considerably more compatible with the then regnant "nation-state." Now in the postmodern epoch with globalization and its companion, regionalization, upon us and moving forward at a fast pace, confederal arrangements have reemerged -- indeed, it may be said, are coming into their own. This book is a preliminary exploration of how those arrangements have taken shape in the postmodern epoch, how the decline of statism and the rise of globalization have made federalism in its confederal manifestations the vital constitutional-institutional component that can provide a political framework within which world economic, communications, security, and other trends can and are being accommodated.

The new confederalism rests on three pillars: security, economic integration, and protection of human rights. Each of those pillars serves one of the major sets of actors on the world scene. The security issue serves the states involved in the confederal arrangement. The economic basis serves the commercial and industrial interests of the major economic actors and the human rights pillar serves the individual citizens within the arrangement and also the primordial groups to which they belong. In this way, the new confederalism offers something for everyone in connection with their primary interests. Obviously the three pillars are not as separate as here portrayed and each of the three constituent groups has interests in the pillars other than the pillar of its major interest. That only serves to reinforce the attractiveness of the new arrangements and also offers a mitigating effect against their own side for each set of actors.

One of the major characteristics of the new confederalism is that it is not a matter of the enlargement of states as in the old confederalism, whereby small polities felt the need to link with one another to establish larger ones to be better able to survive and/or compete in the world amount them, but the transformation of states from the effort and ideal of being totally sovereign and self-sufficient to becoming autonomous jurisdictions within a larger system, with sufficient standing in international law and vis-א-vis other states to be able to protect their autonomy except where they, themselves, have conceded it to some collective of which they are also a part, in which they share in the decision-making but cannot act unilaterally. In short, it is a confederalism of state transformation rather than state enlargement. That is what defines the postmodern character of the phenomenon.

In 1980, in "Consociations of Fatherlands," the first piece in which he addressed the issue directly from a federalist perspective, Duchacek suggested that the newly globalizing postmodern world could learn from the American confederal experience of the Revolutionary Era two hundred years earlier.² On that he quotes Clinton Rossiter, that confederation seems "to have been just about as viable a form of government as could have been offered to the American people" at that time.³ He then proceeded to apply the same analogy to what was then still the European Community (now Union) and other contemporary examples of transnational organization limiting state sovereignty.

Duchacek, who may have been the first political scientist to combine the study of international relations as a field and the study of federalism, wrote:

Never before have so many nations and their leaders so frequently and so openly admitted their growing interdependence; never before have they created so many cooperative frameworks and elaborate mechanisms for managing their complex interdependence and its consequences. Simultaneously, however, national leaders and their supporters continue to insist on the sovereign independence of their states with the expectation that the intricate web of regional or global cooperative links will serve their separate interests.⁴

Duchacek continued his discussion by enumerating the hundreds of organizations and associations then already in existence on a globalized basis.

• Over 300 intergovernmental cooperative associations as opposed to only 37 before World War I.
• An increase of 150 percent in the number of what he referred to as "intersovereign associations" between 1951 and the time he wrote the article.
• Over 2,400 transnational nongovernmental organizations including corporations, trade unions, and religious bodies by 1978.⁵

Since then, all of those numbers have continued to rise exponentially. Thus the 1995-1996 Yearbook of International Organizations lists 12,520 international organizations. While the Yearbook categorizes those organizations in a manner different than Duchacek, the trend is clearly upward in all of Duchacek's classifications this includes:

• 266 "conventional international bodies" (federations of international organizations; universal membership organizations; intercontinental membership organizations; and regionally defined membership organizations);
• 1,497 "other international bodies" (organizations emanating from places, persons, or other bodies; organizations having a special form, including foundations and funds; and internationally-oriented national organizations); and
• 3,049 "special types" (inactive or dissolved international organizations; recently reported or proposed international organizations; subsidiary and international bodies; religious orders, fraternities, and secular institutes; autonomous conference series; and multilateral treaties and agreements).

Duchacek based his view on the fact that the Americans in the 1770s and 1780s were "ready to be Americans," in Rossiter's terms, while the Europeans are not.⁶ Our argument here is that the Europeans and others who are considering or embracing federal solutions may want to be Europeans or something else without ceasing to be Frenchmen, Germans, British, or whatever they are, and hence may prefer less fully binding forms of federal organization.

This is not an easy process. Proponents of globalization are unhappy with its slowness and weaknesses, while opponents are fearful of its successes, making them equally unhappy with the phenomenon. But the process goes on, happily or unhappily, and needs to be better understood for what it is so that it can be shaped to better become what we would like it to be.

This writer believes that globalization is upon us "for good. "For good," in this sense, means in a lasting manner, but it is also upon us "for better or for worse" and we have the opportunity to influence it either for the better or for the worse. Federalism and federal arrangements -- in this case confederal and limited in character -- offer, in this writers opinion, the best chance to influence it for the better, to curb its excesses in the concentration of economic power in the hands of those who have only economic interests, and to provide for the introduction of an appropriate political dimension that will support federal democracy and human rights, individual and group, but they must be consciously developed and carefully thought through.

In the words of The Federalist, the book of political philosophy that laid the foundations for a modern federal theory, regimes are established either by force or accident or by reflection and choice. Regimes using federal principles and arrangements more than any others are products of reflection and choice. This is particularly important in the postmodern world. That world was born in part through a series of conflicts on the part of partisans of liberty and democracy struggling to defeat those who would establish other world orders by force, whether Fascist, Nazi, or Communist. As a result of that struggle, we entered into a period of globalization by accident; that is to say, through relatively small and restricted acts to solve immediate problems which led to the development of globalization in the economic and communications spheres. Now, having discovered what has happened, we have a brief window of opportunity to constitutionalize it through reflection and choice. It behooves us to do so or our children will pay the price.

Confederal solutions, ranging from full-fledged confederations to little more than very limited-purpose associations of states can be understood as regional and functional cooperatives. These cooperatives vary in importance and scope, both in membership, in achievements, and in some cases also in duration. Most important, they vary in the degree to which they constitutionally or empirically bind their members. In fact, they are all of limited purpose and collectively consist of myriad overlapping relationships. Even more critical is that the strongest of them have become what we may call "constitutionally binding"; that is to say, while established voluntarily, they rest upon or have developed elements that formally require a commitment that can only be referred to as constitutional and which from a practical point of view must be maintained if the member is to survive and prosper. That is to say, accepting constitutional limits in order to gain their practical possibilities has become unavoidable for their members, but the fact that these are differentially overlapping cooperatives both makes them more universal and mitigates their comprehensiveness.

The nomenclature of these cooperatives is varied. Duchacek brings sixteen different examples:

• International Atomic Energy Agency (IAEA)
• General Agreement on Tariffs and Trade (GATT)
• Association of South Asian Nations (ASEAN)
• International Bank for Reconstruction and Development (IBRD or World Bank)
• Economic Commission for Europe (ECE)
• Commonwealth of Nations (formerly the British Empire)
• European Economic Community (EEC)
• Conference on Trade and Development (UNCTAD)
• International Finance Corporation (IFC)
• Council for the Cooperation of the States of Gulf (CCG or Common Market of the six Arab states on the Persian Gulf)
• United Nations Children Fund (UNICEF)
• United Nations Institute for Training and Research (UNITAR)
• East African Common Market (potential)
• North Atlantic Treaty Organization (NATO)
• Warsaw Pact (sometimes referred to as Socialist Commonwealth)
• International Telecommunications Union (ITU)

While his examples are now somewhat dated, the terms continue. It seems that the only one he omitted was "league." The seeming modesty or comprehensiveness of the name used in any case is rarely correlated with the scope and depth of the body in question.⁷ Not only that, but the names themselves are different in different states. For example, the United States refers to the universal intergovernmental organization established in 1945 as the United Nations. In other languages, for grammatical or defining purposes, the equivalent term used is "United Nations Organization," an effectively limiting name and actually considerably more realistic as well.

The Several Species of Federalism

The several species of federalism include federal and confederal arrangements, symmetrical and asymmetrical. They are shown in Table 1. The figure is necessarily more analytic than a reflection of reality. In many cases, the various forms cannot be separated one from the other in an absolute sense but, rather, particular polities have combined elements of more than one species in practice if not in theory. Thus several federations began as confederations and have retained confederal features, and vice versa. This is the most frequent blurring, but since these are the two most widespread species, they also have the most significance.

Table 1
FORMS OF FEDERAL ARRANGEMENTS
(Political, Economic, and Religious Parallels)

Political	Economic	Religious	Principal Characteristics
1. Union	Multi-Division Corporation	Episcopal Church Polity	Clearly bounded territorial constituent units retain "municipal" powers only while sharing power concentrated in the common government.
2. Consociation	Guild Systems	Ethnic Congregation (in centralized or hierarchical church)	Non-territorial constituent units share power concentrated in common overarching government.
3. Federation	1. Economic Community 2. Conglomerate, if the constituent units are represented in the overall management structure.	Presbyterian Church Polity	Strong self-government constituent units linked within strong but limited overarching government.
4. Federacy	Customs Union	Autocephalic Church (linked Polity of Larger Hierarchical Church)	Asymmetrical permanent linkage between two self-government units with the lager having specific powers within the small in exchange for specific privileges.
5. Condominium	Joint Stock Company		Joint rule or control by two units over a third or over some common territory or enterprise.
6. Confederation	Common market	Congregational Union or Federation	Strong self-governing constituent units permanently linked by loose, limited purpose common government.
7. League	Free Trade Area	Congregational Convention	Loose but permanent linkage for limited purposes without common government but with some joint body or secretariat.
8. Inter-Jurisdictional Functional Authorities	Joint Enterprises	Board of Missions	Joint or common entities organized by the constituting units to undertake special tasks.

Alain-G. Gagnon has offered the following definition of federalism:

Federalism may be conceived as a political device for establishing viable institutions and flexible relationships capable of facilitating inter-state relations (e.g., division of powers between orders of government), intrastate linkages (e.g., states or laender representation at the central level) and inter-community cooperation. Their emphasis on process, institutions can be seen as a rising out of politics, the genesis of institutions resulting essentially from the conflicts and power struggles of economic, societal and political actors. However, the question of territory is also central to any study of federalism and it allows for the expression of both diversity and unity.⁸

While for analytic purposes we can identify a variety of species of federalism, in reality, not only are the lines of separation between them not fixed, but neither is the official terminology used to describe them uniform. Thus, regarding the latter, Switzerland and Canada, both federations, retain their original names, the Helvetic Confederation and the Confederation of Canada. Spain and South Africa are federations in almost every respect, but neither refers to itself as such. Federations themselves range from Nigeria, perennially under centralized military government, to rather centralized India, to the increasingly centralized United States, to moderately diffused Germany, to very noncentralized Canada.

With regard to the differences between federations and confederations, reviewing all the variations, we may conclude that not only are the divisions flexible but that federations serve what are agreed to be single nations in which the federal government has direct contact with the people. Confederations, on the other hand, not only unite several states but different national states or the equivalent thereof and that the federal government must reach the people only or predominantly through those national states. Stated differently, federations are "tighter" -- partly national and partly federal, in the words of The Federalist, and confederations "looser" -- partly federal and partly leagues. Moreover, a successful federation will be based on a common liberal democratic civil society for the whole, while a successful confederation will be based on a union of often distinctive democratic commonwealths.

Another way to think of the distinction is that federations are concerned with nation-building for the comprehensive unit while confederations are most ambiguous on that subject, even if the union is designed to be a perpetual one as in the case of the Articles of Confederation. This is reflected in the lack of all-union citizenship in confederations or making that citizenship entirely derivative on citizenship in constituent units, unlike federations at which citizenship in the federation stands at least semi-independently from citizenship in the constituent units. Ultimately there is the ability of the federal government to reach out directly to the national citizens even within the constituent units that offers different possibilities which may or may not be used, while such possibilities are distinctly more limited in confederations and confederal arrangements.

There is also more leeway in the forms of regime of the constituent units in confederations than in federations. All the regimes in a federation must be similar in form. Indeed, some would argue, as do Duchacek and Ostrom, that they must be democratic for a true federation to exist.⁹ Confederations can have a greater range of regime forms among their constituent units and still survive and thrive.

Finally, inter-entity decision-making in confederal arrangements more closely resembles diplomatic negotiation and decision-making among sovereigns than within nation-states. While this should not be regarded as absent from federations, for example, local governments within metropolitan regions conduct much of their business in a manner reminiscent of international relations.¹⁰

In some respects, a more precise measure of confederalism is the degree of independent access that constituent states in a particular federal arrangement have to the international arena. Thus, federation and confederation in confederal arrangements, while separable for analytic purposes, in fact exist along a continuum.

We should not regard so many of these arrangements simply as an extension by treaty of accepted international relations among states. Even where the arrangement in question has acquired all the properties of a confederation, it is rarely called that formally. On the other hand, even intentionally far weaker linkages do more than standard treaties. Perhaps the difference is best described in the Treaty of Berne establishing the Universal Postal Union, one of the oldest of the intergovernmental associations. "The countries between which the present Convention has been concluded form, under the designation Universal Postal Union, a single territory for the reciprocal exchange of correspondence."¹¹ When the whole world or a segment of it is considered governmentally to be a single territory even for a limited functional purpose, that already brings the arrangements for governing that territory, at least for that function, under the rubric of federalism.

This does not obviate the question of why turn to old terminology to describe new phenomena? It would be possible to invent new terms, but in political language as in so many other things there are great virtues in continuity, even if that continuity embraces certain changes. Certainly the term "democracy" as we use it today is not what the Greeks meant by democracy when they invented the term 2,500 years ago; so, too, with the term "state," whose meaning differs today from what it was in premodern times.

The important thing is that there are fundamental connections between these differing definitions that justify the use of the same term to describe them. That is much more so in the case of the terminology of federalism than in many other cases. In the study of federalism, new terms have been invented where needed. Federation, for example, invented after 1787, and the invention of the first federation through the United States Constitution. But at the same time it is not only useful but advisable to maintain continuities where they exist, as they do in the realm of confederal arrangements.

Not only that, but by use of a term already loaded with meaning we are helped to avoid implying more meaning to particular phenomena than they legitimately can bear. There is a virtue to approaching reality by holding that if it looks like a duck, walks like a duck, and quacks like a duck, it is highly likely to be a duck. By the same token, if we see something that does not but which we would like to refer to as a duck, having a prior definition to measure it against helps us to avoid jumping to erroneous conclusions.

In the 1990s this new phenomenon began to be recognized on both sides. Students of federalism, less bound by conventional statist thinking, began recognizing the phenomenon a decade earlier, but still only the best students and only in limited ways. In the late 1980s the first students of international relations began to make the discovery from the direction of their discipline. By 1994 the number of articles to appear from both perspectives took a quantum leap forward. So, too, the other, even more public, forums.

For example, in late 1994 the renowned Salzburg Seminar announced its 1995 core program. Of its eleven workshops, three -- The European Union After 1996, Transnational Law: Intellectual Property Rights, and Building and Sustaining Democracies: The Role of Nongovernmental Organizations -- dealt directly with the new confederalization, while four more -- The Globalization of American Popular Culture, Involuntary Migration, The Impact of the Media on Politics, Public Policy and World Events, and Preserving the National Heritage: The Realities, the Politics, the Rewards -- dealt with the environment in which it was taking place.

One of the signs of the times is an upsurge in journal articles submitted on the subjects treated in this book. As co-editor of Publius: The Journal of Federalism, I have noticed this increase in the past few years, either through articles actually submitted or authors contacting Publius' editors with regard to possible submissions. This new interest is most welcome, expressed through Publius and elsewhere.

From Statism to Multilateralism to Confederalism

What we see before us is the development of a set of international regimes of varying scope and constitutional intensity, almost entirely in the post-World War II period, that are in the process of replacing the pre-World War II international system with a new global order. We can describe that change as the movement from statism to multilateralism to confederalism.

The international system prior to World War II was based upon the Westphalian state system and emphasized the sovereignty of individual states, what we may refer to as statism. Beginning in the middle of World War II, the United States took the lead in an effort to modify statism through multilateralism, which can be defined as the linking of sovereign states to collectively establish multilateral arrangements. In this case, multilateralism began with the states allied against the Axis in World War II. Later it was expanded to include the reconstituted Axis states and the newly constituted Third World states. Multilateralism was fostered to allow the development of new international trade, monetary, and security regimes embodied in the Bretton Woods Agreement (1944) and the United Nations Charter (1945) and supplemented by the General Agreement on Trade and Tariffs (1948).

None of this would have gotten started or moved forward had the United States not had the economic and military hegemony that it had. The U.S. had assumed the free trade mantle that its former mother country, Great Britain, had worn in the nineteenth century and when its hegemonic position had allowed it to do so, it pressed its point of view on other states, no matter how reluctant.

Even the United States had problems at the beginning. The Executive branch of the American federal government wanted to go further than the Legislative branch would allow. Hence, the original Executive branch proposal for an International Trade Organization was rejected by the U.S. Senate and abandoned, to be replaced by the looser arrangements of Bretton Woods. Similarly, while the U.S. Senate reversed its post-World War I position and ratified American membership in the United Nations, it very carefully restricted American acceptance of United Nations decisions and associated agreements such as the treaty outlawing genocide.

Indeed, for a decade both the economic and political agreements accepted on paper languished in practice and it was only in the 1950s as a result of changing circumstances and newly perceived needs that there were practical steps under both. GATT began to become more effective, despite all the exceptions which it allowed, and the United Nations, paralyzed by U.S.-Soviet rivalry in the Cold War, took on a certain additional strength when the Korean War broke out, as a result of the Soviet boycott of the Security Council at the time. Hence, in the 1950s there began a slow movement to strengthen multilateralism, a movement which took another step forward in the 1970s, especially after 1971. By that time the United States had lost the hegemonic position that it had in 1944 and the agreements were renegotiated, thereby making the voices of the other industrialized member states better able to make themselves heard.

No doubt, the diminution of American hegemony actually allowed the next steps to take place since the smaller states of the world which, by that time, were no longer insignificant economic powers and which were able to influence policy more directly. This was particularly true in the case of Western Europe which had the additional strength of the European Economic Community which already had become the European Community. While the EC was not yet capable of truly rivaling the United States, it did make the industrial states of Western Europe a great deal stronger in negotiating with the Americans. At the other end of the world, Japan actually began to rival the U.S. in critical manufacturing fields such as automobiles and electronics. The old hegemonic-based order moved on to become an oligopolistic one instead, which also allowed smaller and weaker countries more room in which to maneuver.

This had become possible because the EC had moved from multilateralism in Europe and was beginning to become a confederal arrangement. After its crisis of the 1970s, in the 1980s that confederal arrangement became even more real and by the end of the decade the Community was on its way to becoming a confederation, which it did once the Treaty of Maastricht was ratified and went into effect. Meanwhile, the world as a whole was moving beyond multilateralism and into confederal arrangements marked by the transformation of GATT into the World Trade Organization and the collapse of the Soviet Union and the integration of the ex-Communist Bloc into the worldwide system.

This was not a simple movement but had its ups and downs, fits and starts. For example, the United Nations under its new crypto-federalist Secretary General Bhutros Ghali, attempted to increase its power through multiplying peacekeeping missions. These did not succeed and Ghali was forced to retreat from that exposed position. Moreover, the civil wars in Yugoslavia, which had been provoked by the problematic moves by members of the European Community, should have offered the EC an opportunity to become the peacekeepers of Europe, but they could not rise to the challenge and merely provided a holding action from then until the United States was willing to enter the arena and use NATO as its device to allow a joint North American-European peacekeeping effort. Still, by the mid-1990s the world had not only abandoned the old statism but was reaching well beyond multilateralism which was essentially a matter of international relations among states well into the development of confederalism as a new norm.¹²

From Statism To Federalism

Today 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 in Europe at the beginning of the modern epoch in the seventeenth century, to one of diminished state sovereignty and increased interstate linkages -- what we commonly refer to as globalization.

Along with 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 has seemed 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....¹³

In the new globalizing world states are not disappearing, but 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 built on 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 is called state sovereignty and force 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 federation, the one species of federalism recognized as such in modern times.

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, concentration of authority and power in 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 desirable in all respects or even work. 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. Ethnonationalism and, 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.

The Situation in the 1990s

The new globalization is accompanied by a new localization and new forms of location 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, community and identity matters. 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 recognizably pluralistic, if not polyethnic. Increasingly, 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.

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 federal 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 Brazil's states kept their state police 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 It 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 laender (federated states) and then those five states joined with the eleven federated laender 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 Soviet Union, 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 was 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 revealed a diversity of ethnic groups, forcibly submerged by the nation-states, that had already begun to come to the surface 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 nations, 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 League's 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 its formerly being merely a treaty, the world's 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, 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 Agreement 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 open 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 has become 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.

Notes

* Paper prepared for the Consultation on Abraham Kuyper: A Public Theologian and His Legacy Assessed at Princeton Theological Seminary February 27-28, 1998.

1. Guy LaForest and Douglas Brown describe this janus-like phenomenon in their book Integration and Fragmentation and, along with their colleagues, provide us with a good overview of what is happening in both directions. Douglas Brown and Guy LaForest, eds., Integration and Fragmentation (Kingston, Ont.: Institute of Intergovernmental Relations, 1995).

2. Duchacek, "Consociations of Fatherlands."

3. Clinton Rossiter, 1787: The Grand Convention (New York: Macmillan, 1966), pp. 47-48.

4. Ivo Duchacek, "Consociations of Fatherlands: The Revival of Confederal Principles and Practices," Publius: The Journal of Federalism 12 (Fall 1982):129.

5. Ibid., p. 129.

6. Ibid., p. 38.

7. Duchacek, "Consociations of Fatherlands," p. 136.

8. Michael Burgess and Alain-G. Gagnon, eds., Comparative Federalism and Federation: Competing Traditions and Future Directions (Toronto: University of Toronto Press, 1993), Ch. 2, Alain-G. Gagnon, "The Political Uses of Federalism," p. 15.

9. Vincent Ostrom, "A Computational-Conceptual Logic for Federal Systems of Governance," in Daniel J. Elazar ed., Constitutional Design and Power-Sharing in the Post-Modern Epoch (Lanham, MD: Jerusalem Center for Public Affairs and University Press of America, 1991), pp. 3-22; and Ivo D. Duchacek "Comparative Federalism: An Agenda for Additional Research," in Daniel J. Elazar ed., Constitutional Design and Power-Sharing in the Post-Modern Epoch, pp. 23-40.

10. Vincent Ostrom, ed., "The Study of Federalism at Work," Publius special issue, vol. 25, no. 4 (Fall 1995).

11. Treaty of Berne, 9 October 1874, Article 3:1.

12. Stephen Krasner, ed., International Regimes (Ithaca: Cornell University Press, 1983), pp. 195-232.

13. Max Kampelman, "Negotiating Toward a New World: The Art of Conflict Resolution Through Diplomacy," Speech to B'nai Brith, Jerusalem, 13 October 1993.

14. Interviews in Brazil by the author, 21-30 July 1980.

15. Moshe Hirsch et al., Yerushalayim le'An? (Jerusalem: Makhon Yerushalayim LeKheker Yisrael, 1994); Ruth Lapidoth, Yerushalayim-Heibetim Medini'im u'Mishpati'im (Jerusalem: Makhon Yerushalayim LeKheker Yisrael, 1994); Enrico Molinaro, "Gerusalemme e i Luoghi Santi," La Comunita Internazionale, vol. 2 (1994).

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