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

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!2. No one size fits all.3. Each case is different4.Terminology is not always clear.

International Community

Quite often the International Community,

when confronted with a conflict has two

[three] options:

• Exercise Political Authority

• Negotiations

• Or, try both…at different times

Exercise of Political Authority

1. 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

4. Governorship of territory & population For exp. East Timor

Within Negotiations

1. 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.

Vision of Society

Transition

Negotiations

Informal Contacts [over time]

Who establish the mandate ?

Implementation

Pre-transitional Bridges

Bridges

Aim

Pre-Negotiations[talks about the talks]

Vision of Society For exp. Federal State

Transitional Period (3 years)What has to be done to help create a Federal State ?

Options negotiated consensus Ideal established + pre-requisites for Transition

A

B

Institutional Building

Constitutional building

Mechanisms & Techniques

Just to make things simple, there are two or three aspects that have to be looked into:

1. Within a negotiation what right do the Parties have to decide on the Nation’s future ? This is a key issue within the Institutional/Constitutional building !

Negotiations at Institutional Level [1]

Within Negotiations there are usually two sets of clauses:

1. Clauses that are to be included in the definitive constitution that either marks the end of the Transition – then submitted to referendum/Elections.

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.

Negotiations at Institutional Level [2]

There are also clauses that we call Sunset Clauses and Sunrise clauses.

1. 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.

Transitional Constitutional Elts. [1]

Transitional

Constitution

State Institution in

need of a « lifting » introducted

Gaps & contradictions

Constitutional Fundementals: Executive, Legislative, Judiciary, defense Checks & Balances: Coalitions, Cooptation, Details on Who

does What, How & When, clearly spelt Sharing of Power, Wealth, Defense.

Time Limited Form of Government

Transitional Constitutional Elts. [2]

Transitional Const.Fundamental Issues- Three powers- Human Rights - Good Governance - Defense (Army)Strong checks & BalancesCooptationCoalitionsSunset ClausesSunrise ClausesMonitoringImplementation

Transition

Definitive Const.Fundamental Issues- Three powers- Human Rights - Good Governance - Defense (Army)Strong checks & BalancesIn need of democraticacceptancy via - Referendum - Elections

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 DefinitiveConst. But it must obtain

democratic support

Methodology

Lebanon: Coalition Mechanism built in through hardcore Negotiations.

Not sealed within the Constituion.

Sudan: New elements to be added to the 1998/99 Constitution

Burundi: Build on the 1992

Constitution

Difference between Trans/Def Const.

Transitional Const.

1. Imperfect document

2. Path to Def. Const.

3. Confusing Elts.

4. Heteroclite Elts.

5. Limited in Time

6. Very precise aim

Definitive Const.

1. Elts. CPA

2. Respect aim CPA

3. Democratic accept.

4. Sign the end of Transition

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.

Conflict Management

• What is as important the institutional or constitutional building in federal models, is the acceptance of it’s 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.

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 won’t 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)

Common Characteristics of Federalism Systems

Ronald L. Watts: Comparing Federal Systems

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

Federal Government

Statesor Cantons

Common Characteristics of Federalism Systems

Formal Constitutional Distribution of Legislative and Executive Authority

Allocation of revenue Between all orders

Federal

State/Cantonal

Municipal

2.

Common Characteristics of Federalism Systems

Representation of distinct regional view within the federal policy-making institutions

Particular form of the Federal Second chamber

3.

Lower chamber:Congress or National

Assembly

Common Characteristics of Federalism Systems

A supreme written constitutionnot unilaterally amendable

and a required consent of the federal units

An umpire(courts etc.)To rule on disputes between levels

Intergovern-mental colla-boration in areas that overlap

4.

5.6.

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).

Power-Sharing Political Systems

Group Building-Block Approach

The Integrative Approach

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.

Five Group Building-Block opts1. Create territorial autonomy to ethnic groups and

creating confederal arrangements. 2. Adopting constitutional provisions that ensure a

minimum level of group representation at all levels of government.

3. Adopting group proportional representation in administrative appointments, including consensus-oriented decision rules in the executive.

4. Adopting a highly proportional electoral system in a parliamentary framework; and

5. Acknowledging group rights or corporate (non-territorial) federalism (e.g. own language schools) in law and practice.

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.

Four [Five] Integrative Options 1. Create a mixed, or non-ethnic, federal structure,

with boundaries drawn on other criteria such as natural features or economic development zones.

2. Establishing an inclusive, centralized unitary state without further subdividing territory.

3. Adopting an electoral system that encourages the formation of pre-election coalitions (vote pooling) across ethnic divides

4. Devising «ethnicity-blind» public policies and laws to ensure non-discrimination on the basis of identity or religious affiliation.

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.

Three Lessons Learned

1. 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.

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.

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.