Addis Ababa University Joint PhD Programme in Peace, Federalism and Human Rights

1. Addis Ababa University Joint PhD Programme in Peace, Federalism and Human Rights Federalism in Transition: Paradoxes and Chances for Conflict-Management 5th Class Prof. Thomas Fleiner (Ideas Prof. Lidija Basta Fleiner)

2. Federalism and power sharing in post-conflict divided societies: main comparative findings • 1. Worldwide, power-sharing constitutions remain relatively rare (only 25 out of 191 states) • 2. Federalism was found not to be one-to-one related to democratic governance • 3. The global comparison suggests that it is Proportional electoral systems rather than power sharing which significantly associate with democratic inclusion and participation • 4. The implications for policy makers: investing in basic human development is probably a more reliable route to achieve stable democratic governance than constitutional design alone

3. The aim for this class • To identify major challenges and assets for federalism as a conflict-management strategy in multicultural societies • How can multicultural federalism (nonetheless) work?

4. Outline • Reminder: Major Problems • Federalist accommodation of diversity • How can EF never work – lessons learnt • Reconstructing States after Ethnic/Religious Wars: Constitutionalising Secession is a Solution or “alien” to constitutions • MF is not a “magic tool”, but may nevertheless work – How?

5. 1. Reminder • Major issue: How to democratically reconcile cultural and political pluralism? • WHICH IS, - importantly ! -different from: • How to reconcile cultural and political pluralism in democracies Major consequences: a/ Federalism can meet multicultural challenge only if it is structurally linked to democracy (remember Quebec decision ) b/ different types (not merely forms) of federalism: democratic federalism in US vs. federalised democracy in CH

6. Major Challenges • Not to radicalise the problems to which F. was supposed to be a solution • Not to nourish but to identify, address and accommodate structural causes of mistrust and intolerance (constitutional conflicts as ethnic conflicts as an example) • The process of deliberation and opinion formation which precedes voting in federal power-sharing systems is in principle supportive of trust in divided societies. • However, trust can also be broken by veto power-sharing arrangements.

7. Major Paradoxes • Multicultural federalism starts with a low level of legitimacy due to the lack of trust and tolerance Consequence: • A key role for constitution-making and the Constitution – constitutional consensus! • Secession as part of constitutional consensus and design

8. Constitution-Building and conflict transformation towards democracy Two tasks of a constitution: • To establish (or reinforce) political community, which implies that diverse communities have agreed to live together the formation of political community on consensual terms • To establish (or reform) new rules for the allocation and exercise of state powers, since the contestation over old ones has been the cause of conflict and instability. • There can be serious tensions between the two tasks

9. The Role of Human Rights in Negotiating Competing Claims in Multi-ethnic Societies Rights provide a framework for cross-cultural discourse and negotiation Balancing of interests in multicultural societies requires recognition of collective as well as individual rights A stable settlement in a multi-ethnic society involves recognition and appropriate formulation of social, economic and cultural rights Balancing of conflicting interests through rights gives a major role to the judiciary

10. International Community? • “Bad practices” of constitutional engineering by international community as conflict resolving mechanism –leading to more general conclusions about this new type of post-modern constitution-making without a sovereign • Any “good practice”?

11. The reasons concern: • Different interests, but maybe also the (inevitable?) mediating approach of the IC: • “Mediation principles and technique during the peace negotiations and constitution-building within war-torn societies take inclusive real-politics in form of a “constitutional vision” or as a transition to an authentic constitutional consensus” • the difference in a transitional phase between interim institutional building and constitutional building • The IC will not wait long for the solution - no patience!

12. Rule of Law and internationalCommunity • By often imposing unviable solutions, including the lack of effective guarantees for the international rule of law, “international constitution-making” inherently also challenges the credibility of federal arrangements in such cases, since federalism – in the end- is about consented, constitutionally defined and respected rules of the game.

13. 2.Levels of federalist accommodation of diversity • Legitimacy foundations -nation-building by identifying commonalities • Constitutional design sustaining commonalities by providing institutional design which through decision-making procedure provides for trans-communal politics

14. 3. How MF Can Never Work: Lessons Learnt from Dissolved Ex-Communist Federations • “Constitutions at best reflect structural defects and institutional un-sustainability of a given federal arrangement” (LB replica to Ch. Saunders) • Constitutional ethno-nationalism instead of constitutional foundations for a democratic multinational state ->contractual principle constitutive for a federation has been reduced to the relations among ethno-nations

15. Consequences a/ each constitutional conflict is of itself an inter-ethnic conflict b/ the system survives thanks to authoritarian balancing of inter-ethnic conflicts c/ no federal compact at hand -common state remains negotiable

16. 4. Federalism and Post-Conflict Nation-Building: Can Constitutionalising Secession Help? • Constitutionalism comprises two basic elements: rights provisions (safeguarding various, mostly political, rights and liberties) and design provisions (installing the representative system, separation of powers). • Whereas design provisions limit potential threats to democracy through the political process itself, rights provisions limit the dangers of democracy by expelling certain issues from the political agenda altogether.”

17. Constitutionalisation of secession is a tool of a hybrid nature: • It would both influence the design elements of the state organization, and it would define, as precise as possible, the conditions under which one such ultimate right, as the right to exit, might be exercised.

18. This strategy has the potential of being beneficial for at least three values of liberal-democratic constitutionalism: • The Rule-of-Law Value, • The Extension-of-Democratic-Rights Value, and • The Peace among Communities Value. • How? - By • Avoiding the Impasse of un-governability • Excluding Decisive Interference of International Actors • Enhancing Political Stability

19. 5. Multicultural Federalism Can Nevertheless Work: HOW? Back to major paradoxes and challenges: • MF is not a “magic tool” but may work under following conditions: a/ federal compact makes part of a multicultural democratic consensus (to accommodate major paradox and major consequence)

20. b/ common state becomes non-negotiable (address the major challenge) c/ any design can function as long as it guarantees effective decision-making instead of negotiation: self-sustaining institutional design to address (again) the major challenge

21. From strong democratic states towards strong civil societies to address the challenge • Constructive role of the international community – to meet the major challenge (to help building of trust and tolerance) and not to perpetuate the major paradox by sustaining a permanently negotiable nature of the state