1

DRAFT: NOT FOR QUOTATION

PRECONDITIONS AND PRE-REQUISITES: CAN ANYONE MAKE FEDERALISM WORK?

Paper prepared for a conference in honour of

Ronald L. Watts

By

Richard Simeon

University of Toronto and Harvard University

Institute of Intergovernmental Relations Queen’s University

October 2007

2

Introduction

The topic I was assigned is ‘dispute resolution’ in federal systems. Instead, I have

cast the paper somewhat differently. Rather than focus on the narrow question of dispute

resolution mechanisms, I want to ask a broader comparative question about federalism in

general: When, and under what kinds of conditions is it an effective device for managing

disputes or conflicts in divided societies? Are there prerequisites or preconditions – in

economic, and social conditions, or in the broader political structure of which federalism

is a part – for the establishment and successful functioning of federations, especially

those being considered in countries emerging from authoritarian rule, and/or in countries

experiencing deep internal divisions?

Then we need to ask whether there are specific elements of the federal design itself that

are more or less conducive to successful conflict management. How do the institutions

and mechanisms within federal structures facilitate or hinder conflict or dispute

resolution? The two sections of the paper are linked in the sense that even the best

constitutional design is unlikely to succeed if the larger prerequisites do not exist; and

that where the prerequisites do exist, then the design itself may not matter very much.

Things will work out anyway.

The literature on these points remains deeply contested. Federalism is Janus-faced. Some

argue that federalism is the primary institutional arrangement for the successful

management of ethnocultural conflict where the divisions are territorially concentrated.

3

Indeed, virtually all such divided societies embrace some form of federalism, autonomy,

or decentralization. A veritable industry of scholars, international organizations – from

the UNDP to the World Bank – and NGOs, have vigorously promoted federalism,

decentralization and their variants in recent decades. Lessons drawn from the successful

accommodation of difference through federalism in Western countries like Spain,

Belgium, Canada, and Switzerland have been applied in quite different settings – in

developing countries undergoing democratic transitions, and, in cases like Sri Lanka,

Sudan, and Iraq, countries emerging from protracted conflict.

Whether or not this institutional transfer is possible is a question that those of us who

have recently worked in these countries worry deeply about. As Marie-Joelle Zahar puts

it, “In recent years policy-makers and analysts have promoted power-sharing

arrangements to sustain the peace in deeply divided societies. However, they often

assume rather than demonstrate the effectiveness of power-sharing in providing stability

in the wake of recent ethnic violence; with a few notable exceptions, there have been no

theoretical probes of the limits of the power-sharing panacea.”

There is an alternative perspective that is much more skeptical about federalism. These

critics argue that federalism can institutionalize, perpetuate, freeze, entrench, and even

exacerbate the very conflicts they are designed to alleviate. Federalism, for them, may be

part of the problem, not part of the solution. These negative assessments of federalism

must indeed be taken seriously.

4

Yet another perspective, argued most persuasively in Daniel Treisman’s recent book, The

Architecture of Government: Rethinking Political Decentralization, argues that

federalism is so variable, so contingent on context, so shaped by factors exogenous to

federalism itself, that no firm predictions, pro or con, can be made about its effects on

ethnic conflict (or, for that matter on democracy or governmental effectiveness.) He

argues that “Almost no robust empirical findings have been reported about the

consequences of decentralization.” (2007 5). The findings, instead, are complex, obscure,

contradictory, and pull in different directions. Tsebelis agrees: as an independent

variable, federalism has proven highly ‘elusive.’ (2002 137). He and Treisman echo

Riker’s famous article asking whether federalism exists, and whether it matters. His

answers were ‘no’ and ‘no’ – first because there are so many variants of federalism that

knowing a country is constitutionally a federation tells one virtually nothing else about it;

and second, because how a federation works is fundamentally dependent on factors other

than the design of the federal system itself, notably the party system. (Riker, xxxx).

If blanket support for, or opposition to federalism is untenable, then our attention must

shift. First, we need to think more carefully about the preconditions or prerequisites that

are necessary if federalism is to succeed. If it is true, as so many analyses of federal

experience suggest, that “context is everything,” then we need to be thinking more

systematically about which elements of the context need to be given the greatest weight.

Are some elements essential or necessary; others just desirable or helpful? Are some

contexts inherently hostile to the federal solution? And is the context an immoveable

5

given, an ineluctable constraint, or is it something that can itself be changed by political

action and will?

Another fundamental question for those exploring the relevance of federalism in

democratizing or post-conflict societies is whether the necessary conditions must pre-

exist the adoption of federalism, or whether the negotiation and adoption of federalism

can itself help create them. If the answer is that the conditions are prior to success –

genuine prerequisites – then we must be pessimistic about its appropriateness in many of

the contexts in which it is being promoted. If the latter is true, then we can be more

sanguine.

This challenge was brought home to me, and to David, in the course that we offered to

Iraqi professors of law and political science in Amman this past summer. One of our

sessions was entitled Context and Prerequisites: What is needed to make Federalism work?

When we reeled all these conditions off, we realized that we were setting an impossibly

daunting task. Could any country – let alone Iraq – meet them?

In this paper, I survey the literature to identify others’ conceptions about necessary and

sufficient conditions for successful federalism, and attempt a preliminary assessment of

their importance to achieving success or failure.

What constitutes federalist ‘success’ is, of course, highly contested. For minorities

success is likely to be measured by the capacity of federalism to provide the opportunity

6

for their autonomy and self-government. Success for the majority or the center is more

likely to be measured by the degree to which the majority is free to act and maintain its

authority. Is it the self-rule or the shared rule part of the equation that is given greater

weight? This phrase lies at the heart of federalism, but it provides few guidelines or

criteria for finding the right balance

I will consider success in more neutral terms. It is not defined by the victory or one side

or another. Nor does it imply that regional or ethnic conflicts are fully resolved. Rather

success will be defined if all sides agree that accommodating and managing their

differences through peaceful federalist institutions and practices is preferable to

attempting to deal with them either though secession, or through imposition of a

centralized unitary state. Success, for federalism means, to paraphrase Linz and Stepan

on democracy, that it has come to be, for all its complexity and messiness, ‘the only game

in town’ for recognizing and accommodating difference.1

Two other points about ‘success’: First, it also has a normative dimension. Overall,

federations need to be judged in terms of how well they promote – or obstruct –

democracy, social justice, and the recognition and accommodation of difference in

divided societies. Second, while we all know about several failed federations, success

too is a variable. We need ways of thinking about why some federations are relatively

more successful than others, and along what dimensions?

1 There is another dimension of success that I do not address here. That is when the parties conclude that their continuing association is indeed unworkable. ‘Success’’ in this situation is in achieving a dissolution in ways that are peaceful, respectful of human rights, and in accord with the authentically expressed views of citizens.

7

Ron Watts on Preconditions and Prerequisites

Appropriately for the purposes of this conference, I begin, however, by looking at

what Ron Watts has had to say about what is required for successful federalism to be

established and sustained.

The Institute of Intergovernmental Relations and the Forum of Federations might be

considered part of a global federalism promotion industry. Each is predicated on the

idea that federalism matters; and that its effects are generally beneficial. Leaders of each

of these institutions might be forgiven for what I like to call their ‘vested interest in the

independent variable.’ “You have a problem; we have federalism.”

One might also be tempted to portray Ron Watts as an uncritical advocate of federalism:

after all he has devoted a whole scholarly life to understanding it, and has served as an

adviser in a huge variety of experiments to introduce or reform federalism around the

world.

But such a characterization would be wrong. A large proportion of the work of the

Forum and the Institute has in fact explored the difficulties, complexities, and challenges

in designing and operating federal systems. Ron has explicitly rejected the idea of

federalism as a panacea, or as the solution to every territorial conflict. He devotes a full

chapter of his classic text on comparative federalism to the potential ‘pathologies’ of

federalism. And his early work on new federations in the Commonwealth tells as many

stories about failure as it does about success.

8

Watts’ views on federalism have been forged by this life-long involvement as a student of

the adoption of federalism in developing countries. His first book focused on eight

countries of the British Commonwealth that adopted a federal form of government after

the departure of the British colonizer. Watts’ involvement did not stop with the study of

federalism. At one time or another, he served as a consultant on efforts to establish

federations in East Africa (1963), Uganda (1963), Papua New Guinea (1974 and 1975),

South Africa (1993-96, and 1997), Serbia-Montenegro (2001), Kenya (2001 and 2002))

and Pakistan (2002). It is in these developing countries, with significant levels of

diversity and often a limited commitment to or experience with democracy, that

federalism was viewed in the immediate post-war period, and again in the 1990s, as a

potentially effective mechanism of dispute resolution.

Watts’ belief in the potential benefit of federalism was evident in his first book, New

Federations: Experiments in the Commonwealth. And it was especially as a mechanism

for dispute resolution, in what he called multicultural countries, that he saw the greatest

benefit of federalism:

“Federal government, then, is only one of several possible constitutional solutions, but

there would appear to be a prima facie case for arguing that, in reconciling ambivalent

demands for unity and diversity, federations possess some advantages over either unitary

or confederal systems.”2

2 R. Watts, New Federations: Experiment in the Commonwealth (Oxford: Clarendon Press, 1966): 97.

9

This potential of federalism to reconcile unity and diversity has been a constant theme in

Watts’ work. At the same time, it is because of the difficulty of such a task that Watts

has always followed his discussions of the likely benefits of federalism by stressing some

caveats. In fact, Watts often agrees with some of federalism’s critics. In New Federations,

for example, he stresses the overly legalistic, complex and rigid nature of federalism. He

also acknowledges that concessions to diversity may reinforce and harden divisions,

“proving cumulative in effect.”3 His perspective on federalism was undoubtedly

influenced by the fact that only two of the eight new post-war federal systems he studied

would survive (India and Malaysia), and even these endured significant periods of crisis.

In an article published in the mid-1990s, as the idea of federalism was once more gaining

in popularity, Watts presented federalism as “a pragmatic, prudential technique, the

applicability of which may well depend upon the particular form in which it is adopted or

adapted, or even upon the development of further innovations in its application.”4 Hardly

a ringing endorsement! In fact, Watts’ work largely anticipated Daniel Treisman’s

argument, mentioned in the introduction, about the incapacity of making predictions

about federalisms impact on ethnic conflict.

The first question that comes to mind, in light of Watts’ lukewarm endorsement of the

federal ‘technique’, is what (pre) conditions must be in place for federalism to be an

appropriate mechanism to the resolution of conflict? What is striking while reading the

work of Watts and others is how many observations about necessary conditions he makes, 3 Idem 4 R, Watts, “The Contemporary Relevance of the Federal Idea,” Saint Louis-Warsaw Law Journal 109 (1995): 116.

10

but without a unifying framework. Watts focuses his discussion of preconditions on a

discussion of K. C. Wheare’s three prerequisites: the desire to live under a single

government, the desire to live under regional government, and the capacity to work under

this dual system. But this begs the question: what is necessary to bring these

circumstances about?

The capacity to maintain unity, according to Wheare, was dependent not only on the

existence of a desire for union, but also on the similarity of regional political and social

institutions, and on a general respect for the constitution, the rule of law, and independent

judiciaries.5 The capacity to combine unity and diversity, perhaps the most difficult

challenge in any federation, “depended upon a delicate balance between general and

regional loyalties, upon the avoidance of excessive disparities in regional size and wealth

likely to stimulate struggles for ascendancy, and upon the availability of sufficient

economic resources and men with the capacity to govern, in order to operate both general

and regional governments.” In the conclusion New Federations, Watts especially

focused on the need for the absence of political or economic domination by one group

over the other and on the quality of political leadership as key prerequisites to successful

federalism. But again we note the paradox: federalism is designed to manage difference;

but too much difference renders it impossible.

In a fascinating correspondence with Watts, David Cameron has argued that most of the

preconditions usually noted are in fact necessary not only for federalism, but also for the

establishment of democracy. Their absence does not necessarily make federalism 5 Summary of Wheare from R. Watts, New Federations, p. 100-1.

11

impossible. Watts in his early work seemed to share Cameron’s point of view. He

recognizes that in almost all post-war cases of adoption of federalism, most preconditions

for the success of federalism were absent. Yet, as he argued, “even when federalism has

failed, the alternatives which have been adopted, military and bureaucratic administration

in Pakistan, separate island independence for Jamaica and Trinidad in the West Indies,

and an independent existence for each of the Rhodesias and Nyasaland, are by no means

obviously superior as permanent political solution.”6 So if federalism might have seemed

to be at time inadequate to democratically deal with deep conflicts, there is little evidence

that a unitary system could do a better job. According to Watts, if experience indeed

shows that federal countries are unstable and difficult to govern, “it is usually because

they were difficult countries in the first place that they have adopted federal political

institutions.”7

In many ways, Watts is a realist when it comes to federalism. He is drawn to its study not

so much because of its inherent qualities, but simply because he recognizes that in

situation of protracted conflict it often becomes every group’s second best option, the

only possible compromise in particular circumstances. Whether, it is a morally good or

ideal system is to a certain extent irrelevant. In his first book he approvingly quoted

Norma Manley’s assertion that “Federations are not born of anything else except

necessity, economic, social, and moral necessity” and Sir Ivor Jennings’ statements that

“nobody would have a federal constitution if he could possibly avoid it”. This is how

6 Ibid, p. 352. 7 Ron Watts, The Contemporary Relevance of the Federal Idea, 120.

12

Watts described the experience of the new Commonwealth federations in the post-war

period:

But although in the new Commonwealth federations there was often a lack of the

conditions considered desirable for effective federal government, this did not deter the

constitution-makers. It was not that the importance of these was overlooked, but rather

that in final analysis there appeared to be no alternative. Where in particular

circumstances the federal compromise was the only alternative to political balkanization,

the absence of favourable conditions did not deter the constitution-makers. It was not that

the importance of these pre-conditions was overlooked, but rather that in final analysis

there appeared to be no option.

In his book Comparing Federal Systems, Watts point to four factors that have contributed

to stress within federations: (1) sharp internal social divisions; (2) particular types of

institutional or structural arrangements; (3) particular strategies adopted to combat

disintegration; and (4) political processes that have polarized internal divisions.8 Besides

these four factors, he has also pointed to the problems of the erosion of transitional

inducements to union and unfavourable external influences, problems which especially

marred federations that emerged during the decolonization era.9

With regard to internal divisions, Watts, like many other specialists of federalism, has

also pointed to the special difficulties that arise when different social divisions overlap 8 Ibid, p. 110. 9 See for example Ronald L. Watts, “Survival or Disintegration,” in Must Canada Fail?, ed. Richard Simeon (Montreal-Kingston: McGill-Queen’s University Press, 1977): 43.

13

and reinforce each other or when there are too many disparities between different groups’

economic situation. He also emphasizes the unstable nature of bi-communal federations,

the challenges that arise when one unit is dominant, the difficulty of finding the right

balance between unity and autonomy, the lack of regional representation at the centre,

and the failure to recognize minority languages. Watts also noted that during periods of

stress, attempts at reforming the federation have often moved towards either too much

focus on reinforcing the centre or to too much reinforcing of regional governments,

contributing to a further destabilization. Never one to make the kind of parsimonious,

positivist claims associated with some of the more recent literature on federalism, Watts

argues that the disintegration of federations tends to be the product of a cumulative

combination of factors:

Where different kinds of social cleavages have reinforced each other, federal institutions

have been unable to moderate or have even exacerbated these cleavages, political

strategies have involved an emphasis upon either unity at the expense of regional

accommodation or regional accommodation at the expense of federal unity, and

negotiations have repeatedly failed to produced solutions, there has usually resulted in a

decline in the support for compromise and a cumulative political polarization within the

federation.10

It is interesting to note that for Watts, reinforcing cleavages, more than institutional

arrangements, seem to be the starting point for problems in a federation. If that is correct,

then we might argue that the focus of social scientists ought to be with the design of 10 Watts, Comparing Federal Systems, p. 112.

14

federations that might reduce the strength of such cleavages. The challenge is to elaborate

what kinds of federal institutions, in combination with what kind of broader political

arrangements might be more conducive to managing these cleavages.

Thus Watts’ work includes a wide discussion of numerous factors that support or

undercut the successful introduction and operation of federal systems. The problem with

Watts’ analysis, then, is not that he has ignored preconditions and prerequisites, but that

he and others have a long grab bag of factors the relative importance of which is poorly

understood and theorized.

Weighing the Preconditions and Prerequisites

Indeed, a quick review of Watts’ writings suggests at least 14 different

observations about the necessary or desirable pre-conditions for the adoption of

federalism. But which are necessary, essential, or required? Which are merely desirable

or supportive? Among all the possible factors, which are most important or have the

highest priority? Is there a distinction to be made between factors that are necessary for

the establishment of federal regimes in the first place; and those necessary for the longer

run sustainability and stability of regimes? Are some of the factors identified in the

literature specific to federalism, or are they more general conditions for the establishment

of any stable, democratic system?

What follows is an attempt – a very preliminary one – to tease out some of these

questions.

15

I think it helps the discussion to think of each of the factors or pre-conditions not as a

dichotomy, either/or, you have it or you don’t. Rather we should think of them as

variables – there can be more or less of them. This allows for a much more nuanced

analysis of the potentials for success or failure.

It is also helpful to distinguish between different types or categories or variables. First

are those exogenous to the political system itself, including social, economic and

international factors. Second are those in the sphere of values and attitudes – identities,

beliefs about democracy, ability to build trust relationships, and the like. Third are

factors associated with the larger political regime within which the specific institutions of

federalism are embedded. And finally come those associated with the design of the

federal institutions and practices themselves. Let us say a few words about each of the

elements identified with the success or failure of federations.

Exogenous Factors: Economic Level of Economic Development

Federalism will be more difficult to build and sustain in poor countries. Such

countries are likely to have fewer citizens with the skills and resources to manage the

complex interactions necessary in federalism; they will have fewer resources to be able to

pay for the multiple levels of government federalism requires. In such countries, as well,

the state is often the major supplier of incomes and thus competition for control over its

(limited) wealth is especially intense. Indeed federations that have failed are most often

in the poorest countries. Nigeria and Ethiopia are two poor African countries whose

16

federal systems are in serious difficulty; and this makes it hard to be optimistic about

federal solutions in Nepal, Congo, or Sudan to take three examples. On the other hand,

the case of India demonstrates that poverty is no barrier to creating and sustaining a

vibrant federation. Higher income, then, is not a prerequisite for federalism, but is a

facilitator of it.

Economic Inequalities and Disparities

Perhaps more serious is the danger that extreme disparities and inequalities in

wealth between different regions – especially if these are correlated with ethnicity – may

pose for federalism. Such disparities will increase the intensity of conflict over the

distribution of wealth, and will likely be associated with large differences in the capacity

of constituent units to provide broadly comparable levels of public services. Equalization

and other policies to share wealth more equally may alleviate these problems, but those

commitments depend greatly on the willingness of citizens in the wealthier regions to

consider their poorer counterparts members of the same political community with whom

their benefits should be shared. Nevertheless, India – with its immense regional

disparities -- again demonstrates that economic equality across regions is not an absolute

requirement though it is highly desirable.

Unequal Distribution of Natural Resources

An even tougher difficulty is that posed when valuable natural resources – oil, gas,

diamonds which are by definition immobile – are concentrated in different regions. Not

only does this contribute to wealth disparities generally, but also it is likely to lead to

serious battles over ownership, regulation, and distribution of wealth. Those in regions

17

were the resources are concentrated will push for greater autonomy in order to reap the

benefits for themselves; other regions will press for central authority in order to distribute

them more broadly. The unequal territorial distribution of resources has caused major

strains in every federation in which this situation occurs. Resources, as has often been

observed, are both blessing and curse.

Exogenous Factors: Nature and Number of Constituent Groups

Federalism tends to be more stable and sustainable when there are multiple

constituent groups, none with an absolute majority, than it is when there are only two or

three groups or when there is a single dominant group. With multiple groups, there is

less likelihood of a confrontation between the central government and all the units, and

more room for bargaining and shifting coalitions of groups on different issues.

Federalism is therefore less of a zero-sum game. Where there is a single dominant group,

it may have little incentive to cede power and authority to the smaller groups through

federal institutions. Failures of federalism in Czechoslovakia, Malaysia and parts of the

former Yugoslavia seem to bear out this analysis. Similarly, few believe that a three-unit

federal Iraq would last for long. It is hard to think of any long-lasting bi-communal

federations, with the possible exceptions of Belgium and Canada (in part). .

Federalism is also likely to be more successful when the primary political cleavages –

region, language, religion, class, etc. -- cross-cut each other rather than reinforce or

overlap each other. In the latter case conflict among the groups is again likely to be more

intense and to reflect fundamentally different world views. The different bases of

division are likely to coalesce into single, mutually exclusive, over-arching identities. It

18

may not be impossible to reconcile these within federal institutions, but it will be very

difficult.

Complicating the analysis of factors such as these is that over the long-term the nature of

the constituent groups is not unchangeable. Indeed, the design of the federal system itself

– the number and borders of provinces, for example – may shape the character, goals and

identities of the constituent groups, so the causal arrow is running both ways here.

Exogenous Factors: Historical Legacies

In many of the newer federations there has previously been no experience with

multi-level government or decentralization. Many of their elites have imbued with

monist, unitary conceptions of sovereignty. The idea that sovereignty can be shared or

divided is simply foreign to them. The result is that majority leaders resist

decentralization; and the most obvious option for minorities is secession, both of which

preserve the older view. David and I experienced this deep reluctance to embrace more

nuanced conceptions of sovereignty in our work with Iraqi academics. A useful task for

federation builders, then, is to encourage leaders to look to their own history – for

example much regional autonomy in the Mogul or Ottoman empires – for historical

lessons that might be applied to the present.

Exogenous Factors: the International Context

A benign, supportive, or at least neutral international environment seems to be a

necessary condition. The presence of external forces with links to domestic groups may

well destabilize the accommodations required to make federalism work Federalism will

be less stable if a significant proportion of a community’s population lives just outside

19

the boundaries of the state. These groups may prefer a newly constituted independent

state to federalism, and this is likely to be strongly opposed by the existing states. Iran

and Turkey would certainly prefer a federal Iraq than an independent Kurdistan, but they

are also likely to oppose a strongly asymmetrical federal Iraq that they see as a precursor

to independence. In addition, kinship to a certain group, for example the Shiites in Iraq

and Iran, might lead a foreign power to intervene in the affairs of a neighbor and

destabilize federal and democratic agreements. A number of federations, though, such as

Switzerland, Belgium and even India, have survived with the existence of similar

linguistic groups on their borders.

On the other hand, the international community may facilitate a transition to federalism.

Where hostilities are continuing, or levels of distrust are impossibly high, international

actors can keep the peace, facilitate trust-building, and offer advice about alternative

solutions. But as many in this room can testify far better than I, this is no easy task. If

trust and mutual cooperation have not become internalized and entrenched, then the

careful compromises can fall apart quickly once the foreign presence has departed.

These economic, social and international conditions should be seen as important

background or contextual factors. They are not immediately amenable to change through

political or policy intervention. But they can have a major effect on whether federalism

is a chosen or available option, and largely define the political challenges that the

designers of a federation need to take into account. Federalism will be more difficult to

achieve and sustain when it embodies only two or three units, when the economic and

20

cultural disparities between the units are relatively large, and where important difference

overlap each other. Multiple units with relatively small differences are not a pre-

condition for federalism, but their presence is a major facilitator.

Cultural and Attitudinal Factors Democratic Values

It may be that federalism is not a pre-condition for democracy – though in

territorially divided societies a strong case could be made for saying that it is – but is

democracy a pre-condition for federalism? In the older literature of federalism – and in

the politics of older federations – federalism is seen as part and parcel of democracy. The

two are very closely linked. It is thus difficult to imagine functional federalism that is not

also a more or less fully developed democracy. Some minimum level of democracy can

be seen as a pre-requisite for federalism. Federalism requires the arts of bargaining,

compromise, sharing, shifting majorities, and so on, all of which are basic elements of

democracy. Without such capabilities federalism will likely fail. But it is not clear how

high the bar should be set. One can imagine functioning multi-level systems in which

neither level of government approaches fully developed democracy. It would be

interesting and important to find cases where this is so, and to ask whether their

experience is that federalism tends to promote increases in democracy or not.

Trust

Every federal system requires a high level of trust. Governments make

agreements that must be honored and implemented. They must accept each other’s role,

legitimacy and right to exist. Very clear allocations of responsibility, and clear, accepted,

21

and enforceable judicial supervision of the rules of the game may help minimize the need

for cooperation and mutual trust, but do not eliminate it. Without trust and respect, then

agreements are seen as made to be broken, and rules little more than obstacles to be

skated around. A minimal level of trust among major political actors, therefore, seems to

be a fairly clear and certain pre-requisite. The problem is that it is just this quality that

appears to be most lacking in those conflict-ridden countries where federalism is

currently being advocated. Hence the dilemma: you need federalism because you do not

have sufficient trust; but you cannot have federalism because you do not trust each other

enough. There is no easy way out of this trap. One way is to suggest that if a working

federalism can be established, then gradually over time, trust will build. But this does not

solve the initial problem; nor is there any guarantee that the initial experience will be

positive enough to engender the necessary level of trust in the future. It could indeed

have the opposite effect. The alternative is that a broad range of trust-building activities

must take place prior to and simultaneously with discussion of federalism. This was

certainly the case in South Africa; but there is little evidence of it in countries like Iraq or

Sri Lanka.

Identities

Federalism is predicated on – and indeed virtually defined by – the existence of

multiple, shared nested identities. Citizens need to feel identification both with their

local communities (the driver of decentralization and self rule) and with an over-arching

political community (the driver of unity, and shared rule.) Federalism, then, requires a

minimum sense of vouloir vivre ensemble. Without that whether existing prior to the

22

formation of the federation or successfully constructed by new leaders, a federation will

fail.

But I believe that the importance of common identities – at least beyond a certain

minimum -- can be exaggerated. The key condition is that the differing identities not be

regarded as mutually exclusive. In addition, there are other factors that beyond common

identities that can sustain a commitment to live together. If the federation can provide

mutual benefits – economic and military security for example – then that may provide a

sufficient rationale for its formation, even without strong mutual loyalties. Such benefits

were among the major reasons for formation of the Canadian federation, and the

European Union. Indeed, one could argue that an effective strategy for outside observers

would be emphasize the practical, material advantages of federal arrangements, rather

than to stress the need for a common identity, which may not be possible. Equally

important is the need to emphasize to all sides the costs of failure to make the federation

work. A shift in the calculus of federalism from finding a common identity to analyzing

the costs and benefits of alternative arrangements is desirable.

Constitutionalism and the Rule of Law

A commitment by citizens and elites to constitutionalism and to the rule of law is

an important prerequisite. This is because federalism is a system of law, in which the

written constitution setting out powers and the like is central. A constitution that is seen

as merely a piece of paper, to be ignored or subverted at will, cannot work in a federal

system. A fundamental goal of federalism is to establish rules and procedures for

23

resolving differences that will be seen as legitimate and effective. The rule of law is

essential to this goal.

Factors Associated with the Larger Political System

Federal institutions, of course, are embedded within a broader set of institutions

with potentially important consequences for the viability of the federal system. The key

element here is one that has also featured in Ron’s writings: the need to balance inter-

state federalism – the establishment of autonomous separate governments – with intra-

state federalism, that ensures that the federal character of the society are reflected and

represented ion the institutions of the central government. If inter-state federalism is

about building out – to give autonomy to constituent groups, intra-state federalism is

about building-in. Ensuring regional representation at the center is perhaps the chief

counter-weight to the fear of federalism turning into a slippery slope, a way station on the

way to secession. Citizens in the constituent units also need to have a stake in the success

of the larger system. And this system needs to build bridges that link citizens in different

regions with each other. A number of factors need to be explored here.

Party System

Political parties play a key role in legitimizing federal institutions, potentially

serving as effective inter-regional bridges. A federal system in which all parties are

regionally based, with none capable of making cross-regional appeals, or in which

national and regional parties are quite separate will be less successful. Party leaders will

be more likely to play the regional card, heightening and mobilizing regional differences.

On the other hand, broad catch-all or brokerage parties can provide an alternative arena

24

for the negotiating of differences, and encourage leaders to emphasize issues that cut

across the differences. The key question then becomes how to design electoral systems

that provide incentives for political leaders to build bridges rather than destroy them.

Proportional systems are most often advocated to ensure full representation of regional

minorities in legislatures; it is less clear that they provide effective incentives for bridge-

building. The debate on this issue between Arend Lijphart and Donald Horowitz remains

unresolved.

Power Sharing

If the main communities in a federation are to perceive central institutions as

legitimate, they must feel that they have effective representation and an effective political

voice within them. A regionally representative second chamber is the most common way

for federations to achieve this. But as we know such chambers vary hugely in their

design, and in their effectiveness. But there are many other mechanisms for power-

sharing as well. They include rules or norms respecting membership in cabinets and

other institutions such as the courts. Perhaps especially important is that institutions such

as the security forces and the bureaucracy are inclusive, reflecting the regional and ethnic

characteristics of the population. Again, representational failure at the center places a

profound strain on the institutions of federalism itself. For example, the exclusion of

French-Canadians from the higher echelons of the Canadian bureaucracy and the army

contributed in Canada to the creation of political parties dedicated to the independence of

Quebec.

25

Independent Judiciary

Federations are prone to battles regarding the interpretation of the constitutions.

As such, it is important that for the judicial branch to be seen as free from political

pressures and as an impartial umpire in cases of conflicts between the different orders of

government. A federation is unlikely to survive if its judiciary is perceived as the

instrument of one group or one level of government over another.

Thus there are many ways to ensure that the central government is representative of and

responsive to regional forces. No single pattern is necessary, and much will depend on

the particular characteristics of the federal society. But some form of effective intra-state

federalism does seem to be an essential prerequisite for a successful federalism.

Factors Associated with the Federal System Itself

Finally, we turn to the specific institutions of federalism. Clearly they matter.

But it seems equally clear that very few generalizations or predictions can be made

beyond a very general level. The arrangement for different countries will vary widely

depending on context, and on the outcome of the negotiations leading to establishment of

the federation.

Borders

An important issue in the design of federations that is often neglected is how

many units there will be, and how borders will; be constructed. This is an area of

considerable controversy. How many units Too few – two or three – tends to lead to the

potential instability noted by Watts and others; too many and the stage is set for central

26

government dominance. The recent controversy over the Biden Gelb plan for a three unit

Iraq illustrates the difficulties. Equally controversial in ethnically divided societies is

whether or not the constituent units are designed to be ethnically homogeneous or

ethnically mixed. Is Indian federalism, for example, more or less secure as it has moved

towards more linguistically unified states? In most cases the answer should be

determined by the facts on the ground. Where populations are already intermingled,

creating homogeneous units requires painful and unjust ethnic cleansing. Where regions

are already ethnically homogeneous and conscious of their own identity, dividing them is

also unjust, not to mention politically extremely difficult. In any case there will almost

always be ‘minorities within minorities’ and their recognition and protection is another

condition for an effective federation. It is also unclear whether a federation will be more

or less stable when units are homogeneous: on the one hand that might encourage a

movement towards secession; on the other it might lead the group to feel more secure

because it has its own distinct government to protect its interests.

The Division of Power

Federations must find an appropriate balance between an extreme centralization

of powers and too much regional autonomy. In the first case, regional units might resent

their lack of powers to protect and influence the future of their community. For example,

in Nigeria, the concentration of power over oil resources by the federal government has

created significant instability, considering the high environmental costs borne by the

population of the southern regions. On the other, too much regional autonomy might limit

the opportunity of the different communities to work together, while leading to questions

about the relevance of the central government. There are many other design issues for the

27

division of powers – water-tight compartments vs. large measure of concurrency;

symmetry vs. asymmetry, whether constitutional or de facto, and so on. Beyond the

rather abstract criteria that the fiscal federalism literature provides, there are few general

criteria for deciding who does what in the literature and again no one model fits all.

Institutions for Intergovernmental Relations

While in most federations, it is the courts that ultimately decide intergovernmental

disputes, most would agree that they are a last resort, and that a variety of other

mechanisms are necessary to insure intergovernmental harmony and cooperation in areas

where their activities intersect and overlap. The challenge – as Canadians well know – is

to find mechanisms that encourage cooperative behaviour and discourage behaviour that

focuses on turf protection, blame shifting, and credit claiming. Equally important is to

ensure transparency and accountability to citizens and legislatures in intergovernmental

relations. It is also important to find ways to ensure the intergovernmental agreements

are implemented and enforced. Again, there are many ways to achieve these goals, and

no single model applies to all.

As I have noted, getting the institutions right is clearly important. But it is very difficult

to get them right without an environment conducive to productive discussion of the

various alternative arrangements. And that depends on many of the factors discussed

earlier: a desire to live together, manageable differences, and a degree of mutual trust.

Moreover, getting the institutions right is no guarantee of success, but getting them

seriously wrong will make failure much more likely.

28

Conclusion

This paper began by asking whether there are some essential pre-conditions or

pre-requisites for the successful design and longer term sustainability of federal systems.

We noted a daunting list of factors that have been listed by Ron, and by other scholars. I

suggested that if most of these really were absolute requirements, then the prospects for

success in divided and democratizing societies are slim indeed. It would be a virtually

impossible task to transfer federalism successfully from long-standing western

federations to the difficult cases like Sri Lanka or Iraq.

I think this is too pessimistic a view, for several reasons:

First, very few of the factors I described appear to be absolutely essential. Desirable?

Certainly; Making federalism more or less likely to succeed? Indeed. But this is very

different from saying federalism simply cannot be done without them.

Second, not all of them are ineluctable givens. Rather many of them are subject to

change, whether through developments in the larger society and economy, or through

determined and effective leadership. Admittedly this kind of leadership may be hard to

find in deeply divided societies where leaders making over-arching appeals to the whole

often take second place to those who see gain in appealing to one or another group. But

it is not impossible, Historical legacies do indeed cast a long shadow over the future, but

they are not necessarily destiny.

29

Third, very few of the conditions are absolutes. Recall, we are to think of them as

variables, not dichotomies. This allows us to think that perhaps some minimum level of

trust or vouloir vivre ensemble is necessary to get discussion started. But such things

perhaps need only to be limited or tentative.

Fourth, it is at least possible that the experience of negotiating federal arrangements

within the context of a peace-building process can help bring about the desirable levels of

trust, belief in the rule of law, etc. Again leadership and a supportive international

climate are important facilitators of this.

Fifth, returning to a point made by David, even if the chances of success are low, and if

the conditions seem unpropitious, there may be still the obligation to try. This is because

the costs of failure are so high: continued civil war and blood shed, breakup into

potentially non-viable states, or return to a coercive, repressive centralized. Once

regionally based groups are fully self-conscious and politically mobilized, then some

form of federalism does seem to be the only acceptable solution.

Perhaps the best way to respond to this literature on conditions, constraints and pre-

requisites is to suggest that in listing the difficulties it sensitizes up to the nature of the

challenge, and to the factors we need to take into account, o to assist in changing.

Finally, this paper may suggest a research agenda. As I noted earlier, clear

generalizations in this area are few and far between. A more comprehensive empirical

30

analysis that seeks on the one hand to operationalize and measure the many factors

discussed, and that tries to clarify measures of relative success and failure on the other,

might permit more solid conclusions about which factors are the most important and why.