Nr. 5 – Tombeur, August 2012

In Paper No. 5 Tombeur describes in detail the essential characteristics of a Federation. Then he points out what types of Federations exist, thus eliminating a large number of popular misconceptions about the origin, shape and functioning of a Federation. This Paper serves as a trigger for a 180 degrees turn-around in thinking about Federal organizations. It aims to open the eyes of citizens – misguided  by euro-skeptics or even euro-hating politicians – to the real power, security, progress and sovereignty that a Federation has to offer.

European Federalist Papers © Leo Klinkers & Herbert Tombeur, 2012-2013

 

Althusius’ core thought, as you cited in Paper No. 2, was the vision that a State can only effectively function for the benefit of society on the condition that this State was built bottom-up. This is the most fundamental aspect in the concept of Federalism. Without a form of democracy, there is no Federalism. I admire the fact that this was written already four hundred years ago. The question whether Althusius, with his concept of a Contract, referred to something else than an agreement between equal partners that can be annulled unilaterally, I will stay well clear of. Both a Contract and Covenant assume a compromise, but a Federation implies a larger commitment by the signing parties: the Contract cannot be unilaterally terminated or amended; this is only possible through the consensus of all parties involved. The specific name of the Act, or whatever it is called, is not important. What matters in terms of being a Federation is the commitment, expressed in the Act.

Below I state the essence of Federalism.The reader who would like to get more information is referred to the very informative publication by Éva Bóka, titled ‘Rethinking the role of the federalist ideas in the construction of Europe’. She describes the federal characteristics on the basis of Aristotle, Althusius, Montesquieu, Locke et cetera, until federal thinkers like Spinelli en Delors.

The organizational model of Federalism presupposes the fulfillment of two essential conditions: 1) autonomy of the constituent parts of the whole and of the whole itself, and 2) mutual solidarity, thus a kind of cooperation between the parts and the whole. In an effective Federation the governing bodies of the parts and of the whole should function independently, but also in connection with each other, to a certain degree.

However, the unique feature of the organizational model of Federalism lies elsewhere. It consists of a perfectly mutual agreement between independently operating governing bodies, constituting a single whole, while each exerting certain powers by themselves and entrusting certain powers to institutions operating on behalf of the whole. That Covenant is absolutely mutual in the sense that it can be changed only through mutual consent – thus both by its constituent parts (the Federated Member States or Länder, or whatever name the constituent parts carry, for example, provinces, regions) and by the whole (the Federation, Union or otherwise). That Covenant can only be lifted if the competent institutions of all constituent parts and that of the whole agree. In other words, the survival of the whole and of its parts is ensured, until they themselves would decide otherwise.

That consensus does not only apply to a change in the division of competences, but also to the joining of the Federation, the exclusion or retirement (secession) from the Federation. The underlying principles leading to these far-reaching commitments are: each governing body is equal in sovereignty and all governing bodies are mutually supportive, because the Covenant offers added value – for example for external security or economic welfare. A good example of how this model works in a Federal State is Canada: the predominantly Francophone province of Quebec’s specificity is no reason to give this State a separate statute in the Federation with an Anglophone majority. The other provinces refuse such a deviant Statute, despite all actions of Québecian nationalists.

In essence, a Federation differs from other organizational forms in terms of absolute reciprocity of consent when changing the internal balance of power. A federal organization with the ‘checks and balances’ which I emphasized here, is a concrete application of what is pointed out by the sociologists Crozier and Friedberg about power: it is pointless to fight a power in order to destroy or restrain – order in society is necessary, thus power is inevitable – unless it takes place in the form of a countervailing power.

Make no mistake, there is no double sovereignty in a Federal organization, since that would entail a completely separate power of each governing body. A Federation possesses both a divided and a shared form of sovereignty. Both levels of Government, the federal level and the level of the constituent parts, form a part of that sovereignty, with their own powers. And this autonomy can only be changed through the mutual agreement of all governing bodies. Sovereignty in a federal State is divided, but also complementary: the essence of a Federal form of Government is that the Federation and its parts are assured of their continued existence to the extent that the abolishment of the Federation, or a change in its composition or internal balance of power, are only possible through a general agreement at both the Federal level and that of the Member States. This makes it clear that more is needed than a political decision made by a number of States for the creation, preservation and abolishment of a Federation.

Federations are distinguished from other State forms not by a hierarchy of regulations between the Federal level and the Member States (for example, in Germany the Federation has the decision-making power, the Member States (Länder) execute them), nor by competing powers (which can also occur in unitary States), nor by the method of decision-making (by consensus or majority), nor by the centre of gravity of the distribution of power – most powers, or the main power, can be exercised both on the Federal level and by the Member States. However, in each case we speak of a Federation. Again, the basis for a federal system is the fact that the sharing of power between the parts themselves and between them and the whole can only be changed through mutual consent.

Of course, all characteristics of a Federation are parameters by which the degree of solidarity can be measured. For example, a Federation in which the constituent parts mostly take majority decisions, points to an alliance between those Members that is stronger than a Federation, where the constituent parts must decide unanimously. The decisions for the whole always have to be taken by all bodies representing that whole. The conditions that must be fulfilled to make Federal decisions, reflect the strength or weakness of the Federal Government.

Therefore, a Federation differs from a Confederation. A Confederation represents a mutual agreement between entities, usually States, which can be terminated unilaterally by one of its Members. A Confederation does not create a governing body operating separately from its Members; it creates no authority that can take decisions and perform in their name. A Confederation creates a bond similar to that of a marriage or any other form of private contract: it arises from mutual consent, but may be cancelled unilaterally. The distinction between a Federation and a Confederation thus lies in the basis of their union: the Federation’s basis is perfectly mutual, usually called the Constitution, a Confederation is based on a Treaty that can be unilaterally annulled.

I have dwelt on the fact that very often the concept of ‘confederalism’ is used in the creation of international organizations. I repeat that a Confederation exclusively derives its power from its Members. It does not hold sovereignty by itself, nor an approved power in itself, because the (unaltered) continuation of the Confederation depends entirely on the decisions of the Members. The whole exists only thanks to the parts. Usually the concept of confederalism is used for the creation and the functioning of international organizations, therefore the European Union strongly resembles a confederal system.

In the EU it is quite clear that the decision-making power lies with the Member States, although they come together in European institutions such as the Council of Heads of Government, the Councils of Ministers and even Parliament, whose Members are elected from each Member State. The Treaty of Lisbon has confirmed the Confederate model by expressly providing the option for a unilateral withdrawal by any Member State. Nevertheless, the European Union possesses some light Federal characteristics. For example, in its weak Federal nature we see the role of the Commission, with its right of initiative for new legislation and its power of governance, and in that of the Court of Justice, ensuring the primacy of Justice by placing European rules above national rules.

A Federation has nothing to do with the concept of decentralization. A central administration is decentralized when the decision-making power is granted unilaterally to lower institutions. But that power can be withdrawn unilaterally. Those institutions may use their delegated power independently, though usually controlled or supervised by the central Government.

All this means that a Federation does not create centrally imposed uniformity, quite the contrary: it is only at the Federal level that some compromises must be made to bind the whole; the Member States and their policies exist independently. There could be a Federal policy that differs from that of the federated authorities and between them their policies could also differ. At the Federal level the constituent parts take part in the decision-making process because they make up the whole. Thus, the United Kingdom and France, who regard sovereignty as indivisible – lacking experience with Federalism – come to the wrong conclusions.

From what I am writing here you can deduce that the characteristics of a Federation as presented by you in Paper No. 2 are correct, with a proviso regarding your points (f) and (g). For the following reason:

Federal States can be very different in their organizational forms, but they must all meet the essence, as described above. There are as many forms of Federalism as there are Federations. Each Federation has its own particular characteristics. For example, there are Federations with and without hierarchy between the legal norms of the Federal Government and those of the Member States. Germany boasts a regulatory hierarchy (‘Bundesrecht bricht Landesrecht’) but in Belgium each jurisdiction is assigned exclusively to one governing body. However, Federal systems can be categorized, relating to the criterion of distinction.

A Federation can be created bottom-up or top-down. Usually, the double administration starts through the cooperation (federalization) between autonomous areas or even independent States, thus bottom-up (for example, the United States – ‘e pluribus unum’, Canada and Switzerland). However, this is not necessarily always the case. The reverse movement, top-down, or the dissolution or ‘defederalization’ of a centrally-administrated State into a federal State also occurs (for example, Belgium and Czechoslovakia after World War II). This difference in the process of its political creation usually has an impact on the type of Federation that ensues: Federalization means a striving for solidarity and is therefore centripetally; defederalization aims at the recognition of identities and thus is centrifugal. Federations emerging from bottom-up are focused on cooperation, top-down emerging Federations focus on autonomy.

Another distinction can be made between institutional and functional Federations. Here, the criterion of distinction is whether or not the three horizontal powers – the legislative power, the executive power and the judiciary (the so-called trias politica) – are united on one level. In institutional Federations there are two or three powers united at every level, both at the Federal level and at the level of the Member States. In those Federations there is little dependency between the two tiers of Government. This is the case in Australia, Belgium and Canada. Functional Federations, on the other hand, have spread those powers across the two levels of Government. As a result, mutual dependency is high. Germany, Austria and Switzerland are functional Federations.  

With respect to the autonomy of resources a Federation can also be classified in terms of autarchy versus solidarity. The criterion is the degree of autonomy of the resources, including finances. A Federation is called autarchic when the two tiers of Government are predominantly autonomous in terms of income and expenditure. This is the case in Germany. We speak of solidarity if the Federation collects the resources and distributes them to the Member States. This applies to Belgium: only 25% of regional revenues are collected directly. Canada holds a position in the middle: the provinces collect around 45% of their income themselves.

There are exclusively and competitively organized federations. One distinguishes them by measuring the degree of separation between the policy domains, within the competences of the two levels of Government. In other words, one investigates whether there are many or few policy areas in which both levels may operate. In exclusive Federations most policy areas all, or predominantly, belong to one level of Government, either on a Federal level or on that of a Member State. As a result, the Federal and regional norms hardly compete with one another, thus there is little hierarchy between those norms or other legal matters. This is the case in Belgium, where some policy domains are completely or almost entirely mapped to a particular level. Competing Federations, on the other hand, are structured with most policy domains across both levels – this is the case, for example, in Switzerland.

Moreover, one can distinguish Federations by their way of internal cooperation. The criterion here is the way in which the cooperation between all autonomous entities of the Federation is organized. In some Federations they cooperate mainly through intergovernmental agreements and inter-Ministerial conferences, to reach communal decisions. This is the case in Belgium and Canada. Such Federations may be called intermediate cooperative federations. In other Federations, the cooperation to decide communally takes place formally either within a Federal institution, such as a Chamber of the Federal parliament, or in an institution of the Federated entities. This is the case in Germany, where the cooperation between entities is deliberated in Federal institutions exclusively, inter alia the ‘Bundesrat’, one of the two chambers of the Federal parliament composed by representatives of the federated units, the so-called Länder. Such Federations may be called integrated cooperative Federations.

To conclude this Paper, I would like to emphasize two points. Generally, the centre of gravity of the exercise of power in a Federation can lie either in the ‘central’, Federal Government or with the Member States. This is a criterion to determine whether a Federation is central or peripheral. Belgium is a central Federation, Switzerland is a peripheral Federation. Federations evolve, just as other organizations do; their characteristics can change. For example, in the United States the Federal government only became much more important since the New Deal of President Franklin D. Roosevelt, to combat the economic depression of the 1930s. And the Federal Army remained after World War II greater than ever. Since the 1980s there is a political movement advocating a shift of Federal power to the Member States. This important aspect of the United States’ internal politics receives only little attention in our media.