Intensivseminar WS 20062007 Institute of Federalism UNIFR

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Intensivseminar WS 2006/2007Institute of
Federalism - UNIFR

• "Föderalismus ein Modell zur Konfliktbewältigung
  
• Prof. Thomas Fleiner - Prof. Lidija Basta Fleiner
• Julian Thomas Hottinger
• Granges-Paccot - 15 December 2006

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General Comments

• Negotiating Mediating, Facilitating is not an
  easy task. Why ?
• 1. The nature of war determines the nature of
  peace. This means that the factors which produce
  and sustain the conflict will directly impact the
  ensuing peace settlement!
• No one size fits all.
• Each case is different
• Terminology is not always clear.

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International Community

• Quite often the International Community,
• when confronted with a conflict has two
• three options
• Exercise Political Authority
• Negotiations
• Or, try bothat different times

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Exercise of Political Authority

• Assistance to an interim government
• For exp. Afghanistan
• 2. Partnership with the existing occupier
• For exp. Namibia
• 3. Control of divided fractions
• For exp. Cambodia
• Governorship of territory population
• For exp. East Timor

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Within Negotiations

• Until about 10 years ago, the International
  Community usually helped negotiate ceasefires and
  virtual peace was built up from there.
• 2. Today, it is just about impossible to go down
  that road you have to build a vision of
  society. The final optimism acceptable for all.
  And from there, build the bridges to get there.
  Your bridges are usually built in during the
  Transition.

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Vision of Society
Informal Contacts over time Who establish the
mandate ?
Aim
Bridges
Transition
Pre-Negotiations talks about the talks
Pre-transitional Bridges
Negotiations
Implementation
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Vision of Society For exp. Federal State
B
Constitutional building
Transitional Period (3 years) What has to be done
to help create a Federal State ?
A
Institutional Building
Options negotiated consensus Ideal established
pre-requisites for Transition
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Mechanisms Techniques

• Just to make things simple, there are two or
  three aspects that have to be looked into
• Within a negotiation what right do the Parties
  have to decide on the Nations future ?
• This is a key issue within the
  Institutional/Constitutional building !

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Negotiations at Institutional Level 1

• Within Negotiations there are usually two sets
  of clauses
• Clauses that are to be included in the definitive
  constitution that either marks the end of the
  Transition then submitted to referendum/Election
  s.
• 2. Clauses that are to be included in the
  Transitional Draft and usually cover this period
  and once the transition is over they are
  dropped.

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Negotiations at Institutional Level 2

• There are also clauses that we call Sunset
  Clauses and Sunrise clauses.
• Sunset clauses are clauses that disappear once
  they have accomplished their task
• 2. Sunrise clauses are clauses that can only
  start fulfilling their task once a series of
  pre-requisites have been obtained.

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Transitional Constitutional Elts. 1
Time Limited Form of Government
Gaps contradictions
State Institution in need of a  lifting 
introducted
Transitional Constitution
Constitutional Fundementals Executive,
Legislative, Judiciary, defense Checks
Balances Coalitions, Cooptation, Details on Who
does What, How When, clearly spelt Sharing of
Power, Wealth, Defense.
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Transitional Constitutional Elts. 2
Transitional Const. Fundamental Issues - Three
powers - Human Rights - Good Governance -
Defense (Army) Strong checks
Balances Cooptation Coalitions Sunset
Clauses Sunrise Clauses Monitoring Implementation
Definitive Const. Fundamental Issues - Three
powers - Human Rights - Good Governance -
Defense (Army) Strong checks Balances In need
of democratic acceptancy via - Referendum -
Elections
Transition
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Definitive Constitution 1
Keys Elements coming from the Peace
Agreement Transitional Const. Imperative
Keys Elements agreed upon in the Peace Agreement
might go into the Definitive Const. But it must
obtain democratic support
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Methodology
Burundi Build on the 1992 Constitution
Sudan New elements to be added to the 1998/99
Constitution
Lebanon Coalition Mechanism built in through
hardcore Negotiations. Not sealed within the
Constituion.
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Difference between Trans/Def Const.

• Transitional Const.
• Imperfect document
• Path to Def. Const.
• Confusing Elts.
• Heteroclite Elts.
• Limited in Time
• Very precise aim

• Definitive Const.
• Elts. CPA
• Respect aim CPA
• Democratic accept.
• Sign the end of Transition

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Federalism How does it fit in?

• Now a complex world and more complex systems
  needed to negotiate an agreement.
• Today we will be talking of one of the elements
  in a conflict negotiation, which is the Federal
  model(s) which are diverse and reflect how
  the power-sharing should take place.
• One warning Federalism is by far not the only
  solution to every conflict and by far not the
  panacea.

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Conflict Management

• What is as important the institutional or
  constitutional building in federal models, is the
  acceptance of its logic. The will to share out
  power at different levels and amongst different
  groups.
• Together with the fact, that federal contracts
  are probably like most institutional set-ups -
  not  cast in stone , or definitive, but demand
  a perpetual negotiations amongst the parties.

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Conflict Management

• The one last element than is important in the
  area of Conflict Management is the techniques
  used to negotiate and agreement.
• Today I wont be going into detail, but the one
  element I would like to strike at is CRITERIA.
  This is the need to avoid the political debate
  which is always there and concentrate on the
  technical aspects (e.g. Somalia)

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Common Characteristics of Federalism Systems
Ronald L. Watts Comparing Federal Systems

• Two orders of Government (Federal/State) acting
  directly
• on their citizens

Federal Government
States or Cantons
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Common Characteristics of Federalism Systems
2.
Formal Constitutional Distribution of
Legislative and Executive Authority
Federal
Allocation of revenue Between all orders
State/Cantonal
Municipal
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Common Characteristics of Federalism Systems
Representation of distinct regional view within
the federal policy-making institutions
3.
Particular form of the Federal Second chamber
Lower chamber Congress or National Assembly
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Common Characteristics of Federalism Systems
An umpire (courts etc.) To rule on disputes
between levels
A supreme written constitution not unilaterally
amendable and a required consent of the federal
units
Intergovern- mental colla- boration in areas
that overlap
5.
6.
4.
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Power-Sharing Political Systems

• Power Sharing in Political Systems, within the
  area of Conflict Resolution, can come in all
  forms and shapes. The main idea is to say that
• Decision-making ideally occurs by consensus
• All major groups in conflict should be included
  in government, and minorities, especially, are to
  be assured influence in policy-making on
  sensitive issues, which concern them (language,
  education).

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Power-Sharing Political Systems
Group Building-Block Approach
The Integrative Approach
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Group Building-Block

• Ethnically homogenous groups form blocks of
  common society
• Key elements federalism and devolution of power
  to ethnic groups in the territory that they
  control minority vetoes on sensitive issues
  grand coalition cabinets proportionality in all
  spheres of public life.

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Five Group Building-Block opts

• Create territorial autonomy to ethnic groups and
  creating confederal arrangements.
• Adopting constitutional provisions that ensure a
  minimum level of group representation at all
  levels of government.
• Adopting group proportional representation in
  administrative appointments, including
  consensus-oriented decision rules in the
  executive.
• Adopting a highly proportional electoral system
  in a parliamentary framework and
• Acknowledging group rights or corporate
  (non-territorial) federalism (e.g. own language
  schools) in law and practice.

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The Integrative Approach

• Political Alliances across lines of conflict
  thus creating incentives for political leaders to
  be moderate on divisive ethnic themes and
  enhancing minority influence.
• Key elements electoral systems that encourage
  pre-election pacts across ethnic lines
  non-ethnic federalism that diffuses points of
  power public policies that promote political
  allegiances that transcend groups.

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Four Five Integrative Options

• Create a mixed, or non-ethnic, federal structure,
  with boundaries drawn on other criteria such as
  natural features or economic development zones.
• Establishing an inclusive, centralized unitary
  state without further subdividing territory.
• Adopting an electoral system that encourages the
  formation of pre-election coalitions (vote
  pooling) across ethnic divides
• Devising ethnicity-blind public policies and
  laws to ensure non-discrimination on the basis
• of identity or religious affiliation.

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Four Five Integrative Options

• Some experts will say this is an important
  element, while I am not sure of how good the idea
  is
• 5. Adopting winner-take-all but ethnically
  diverse executive, legislative, and
  administrative decision-making bodies.

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Three Lessons Learned

• For Power Sharing to work, there must be a strong
  core of moderates both political elites and
  civil society that seeks coexistence. Moderates
  must be able to withstand pressures by extremist
  politicians and public.

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Three Lessons Learned
2. More important, in my opinion, than the
actual form of power sharing (group
building-block or integrative) is the extent to
which agreement to create power-sharing system is
the result of good-faith bargaining and
negotiation.
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Three Lessons Learned

• 3. Power-sharing systems work best when they are
  a temporary measure to build confidence (wear
  down the conflict) until more permanent
  structures can be adopted.