Addis Ababa University Joint PhD Programme in Peace, Federalism and Human Rights Federalism and Human Rights: The Challenges of Multiculturalism 8th Class Prof. Thomas Fleiner (ideas Prof. Lidija Basta Fleiner)

Outline: I - Historical Context and Key Issues II - F - Words defined: federalism, federal political systems, federations III - Outlook

I - Historical Context and Key Issues I.1. Historical Context A historical development of federalism as a normative political theory shows that federalism emerged as an alternative to a centralised modern state with a view to: –a) sovereignty; –b) legitimacy

Althusius first challenges the rise of a centralized modern state – politics as an art of consociation (XVII century) Peace as an aim/ telos of international federalism (I. Kant: Endurable Peace) The “American Invention”/dual federalism and 19th – century debates over sovereignty in a federal state The mid 20th-century debate: federalism has either become obsolete (Laski); federalism is a panacea for Europe The contemporary debate over federal citizenship in multicultural democracies

I. 2. As a Consequence: Major Issues DISPUTES/AMBIGUITIES OVER: 1.majority/minority relationship 2.diversity 3.the nature of sovereignty and a constitutionalist argument = values ideologically heterogeneous FROM THE BEGINNING PEACE AS A “PARALLEL TELLEOLOGY” OF FEDERALISM – a linkage to multicultural fragmented societies

In general – redefining political integration: Can federalism - and how - contribute to the quality of democracy in a multicultural setting? How to understand multicultural citizenship in terms of the relationship between liberal nationalism and the ethnic minorities’ demands for equal citizenship with special rights?

Major dilemmas: Is there a structural tension between modern statehood and pluralism? Do diversity and heterogeneity threaten the integrative force of the nation-state (political integration)? How does federalism in general, and federalism accommodating multiculturalism in particular affect constitutional politics of human rights?

Human Rights and their effective protection revisited with a view to federalism and inter- communal peace Direct constitutional protection and direct effect of human rights: The rule of law and federalism - group accommodation and (possibly) collective rights as a specificity Example: The implementation of international human rights legal standards in federal multicultural states -> for the sake of communal peace collective rights by ascription can be given priority over individual human rights.

I.1.3.Justifications of federalism Constitutionalist argument: vertical separation of powers –> limited government –> personal freedom Diversity argument: Protection of minorities Conflict-transformation argument: resolution of internal regional, religious, linguistic or ethnic (prevailingly) conflicts The increase-of-democratic-participation argument: multi-layer governmental structure

II - F - Words defined: federalism, federal political systems, federations II. 1. Federalism: a/ normative political theory/ideology b/ a great variety of institutional arrangements Federalism/Non-Decentralisation is different from decentralisation (non- hierarchical, Elazar)

Forms and Types of Federalism 1.Personal and/or Territorial Federalism (forms) 2.Federalism and Power-Sharing 3.Monistic vs. pluralist (type of) federalism (US -> CH): from constitutionalism to peace as an objective of federalism 1+2+3: The difference between form and type of federalism

II.1.1. Personal/Corporate Federalism Governmental power is not distributed over territories but over population groups Limits of governmental jurisdiction are determined by voluntary group membership, not by territorial borders Advantages: Policy making targets directly communities Whereas in TF with ethnically heterogeneous territories a social minority becomes a political minority, PF retains substantial autonomy in regions with mixed population NB: PF and TH are imbedded in power-sharing, but PSH is also applied in unitary states (Netherlands, Austria)

II.1.2. Power Sharing Elements: Executive power-sharing/grand coalition Minority veto Proportional representation of major groups in elected and appointed offices Cultural autonomy/collective rights or territorial federalism

II Types of power sharing Autonomy as a direct groups’ control over important affairs of their concern (asymmetrical and symmetrical federalism) Group-Building-Block/consociationalism encouriging collaborative decision-making (Dayton Agreement in Bosnia) Integrative Power Sharing rejecting cohesive groups and accommodating crosscutting interests (Switzerland)

II Cont.: Diversity of Federal Institutional Designs Federalism as an institutional arrangement is a constitutionally established balance between self-rule and shared rule - a critical importance of a constitution! Federal political system Federal state/federal government/federation Confederation/federacies/regionalism with federal elements

Federal government is a type of a compound governmental organisation within which both central and component governments operate directly upon the people, each being independent within respective, constitutionally laid down sphere of allocated powers and in co- ordinating relationship with another, whereby the residuary powers lie – in most of the cases within component units (R. Watts).

A federal political system unites separate polities within an overarching political system by distributing power among general and constituent governments in a manner designed to protect the existence and authority of both (D. Elazar)

Outlook with regard to the theory 1.The nature of conflicts in multi-ethnic societies -> multiculturalism as an endemic post-modern challenge and its relation to federalism 2.State-building and nation-building -> legitimacy in multicultural/multi-ethnic societies and rather constitution-building then (merely) constitution-making 3.The particularity of minority rights as “universal rights” design -> democracy and constitutionalism in multicultural/multi- ethnic societies : a particular nature of minority/majority relation in societies with community cleavages is a cross-cutting problem!