From jskuller Thu Mar 19 13:41:06 1998 Date: Thu, 19 Mar 98 13:41:06 From: jon ivar skullerud Subject: Re: Regional functionalism vs Federalism To: cml@df.lth.se (C Malte Lewan), chbeun@worldonline.nl (Herman Beun), olvil@wmdata.com (Ole Villumsen), hesselin@math.ruu.nl (Dennis Hesseling) In-Reply-To: C Malte Lewan's message of Sat, 15 Mar 1997 03:07:19 +0200 Organization: Confused Phone: +61-(0)8-8303 3542 Mime-Version: 1.0 Content-Type: text/plain; charsetÿso-8859-1" Content-Transfer-Encoding: quoted-printable X-Mailer: Ream version 5.1.51 (Mailers Have Feelings Too) X-Spam: $500 charged per unsolicited email Fcc: +manifest Status: RO Yep, here we go ... *%^> ... Dennis asked if we could explain regional functionalism in about 3 sentences. Well, this will be about 300 sentences instead ... So, perhaps, a 3-sentence summary first of all, for the benefit of those who didn't follow the debate a year ago: Regional system-transforming functionalism is based on cooperation between (self-defined) regions which is not fixed to a specific structure. The regions decide for themselves on which areas and with which other regions they will cooperate and pool sovereignty, and they may decide to cooperate with different regions and using different interregional bodies for different purposes. This avoids the centralising tendency and rigid structures inherent in federalism. You don't have to read any further if you don't want to -- on the other hand, you'll miss out on quite a lot of arguments and examples.... And if anyone replies to this, i will give no guarantee that it won't take me over a year to reply again. Now, the oldest thing i have in my inbox is a 336-liner that Herman composed in august ... C Malte Lewan writes: > This got a bit long maybe...:) You bet! [ Malte's "short" intro and various extraneous issues snipped. ] > jon ivar skullerud wrote: > > In article <199702282113471957131@nek92mle.student.lu.se>, > > cml@df.lth.se (C Malte Lewan) wrote: [ cutting directly to the point... ] > > > Somebody has to make the laws of a specific territory. > > > > Why? > > Eh, otherwise we would have anarchy (of which the advantages/ > disadvantages I'm not really ready to discuss for the moment). Well, we'll leave that to one side for now. > I don't mean that someone - singular - has to make _all_ the laws of > a specific territory. Maybe that's what it looks like from my > phrasing. I mean that behind one law, there has to be one (or > possibly several co-operating) institution(s) acting as one > authority. Actually, what i was challenging here, was the notion of laws being based on territory. It has struck me that this is a rather old-fashioned idea which may not be necessary today. There are many groupings and issues that transcend territory, which could perhaps be legislated for on a different basis. But that's a different discussion... > > > But it can be shared between > > > different levels of government. Sometimes then, there is a row about who > > > is entitled to make the law and a constitutional court in a federal > > > state decides. Do you suggest having horizontally different political > > > institutions with different responsabilities in law making who then > > > compete in this task? > > > > I'm not sure if they will compete, but yes, I think you've got the gist > > of it. It's not such a novel thing either, since this is basically how > > international law is made. You do need a mechanism for conflict > > resolution where the responsibilities of two institutions may overlap, > > but that is different from having a single (federal) government. > > Basically, this is an elaboration of the principle that decisions are > > made by those affected by the decision, and also takes into account > > that people may have several allegiances which do not necessarily > > coincide with any predefined territorial borders. [ snip definitions of functionalism, federalism, transactions analysis, intergovernmentalism and neofunctionalism. check out 8.1 and 8.2 in http://www.df.lth.se/~cml/fed-integr-dd.txt for details ] > As I interpret the situation, your views are closest to the > system-transforming functionalism in contrast to all these British > intergovernmentalists in this group. I may be attacked for labeling > individual people now (you're more that welcome to correct my mistakes) I haven't attacked you for this for the last year, and i won't attack you now :-) > Scania is situated in the New Europe of Horizontally Overlapping > Authorities ("system-transforming functionalism"). Some laws are made by > the regional parliament, that is those that can't be made on a lower > level of government without something valuble getting lost > (Economically, politically? What is this eigentlich according to the > subsidiarity principle?). But then Scania doesn't want to take care of > certain "big politics" tasks, such as defence and foreign policy. So... > Denmark makes the laws for Scania concerning foreign policy and Sweden > makes the laws for Scania concerning defense and we have the same > currency and central bank as Northern Germany and laws of the North > German Republic are regulating these things. Additionally, the Council > of Europe makes our laws concerning human rights, for example. Etc. Who > does what is regulated in both the Scanian constitution and the > constitution of the partner authority in question. In the Swedish > constitution, you'll read that the defense territory includes the > Autonomous Territory of Scania (and is also the area for mandatory > conscription) and in the Danish constitution, it's written that Denmark > makes our foreign policy. All this is further recognized by several > international institutions. I'm not sure if it's possible to separate defence and foreign policy, so your example here may be a bit far-fetched ... anyway, in my world there wouldn't be any military forces ... > But additionally, let's say that Sweden also takes care of environmental > concerns and Denmark of infrastructure. And one day, the Danish > government decides to build a bridge between Helsingør and Helsingborg > and the Swedish government forbids this (makes a law against it, I > suppose) because it's environmentally harmful. And Denmark takes Sweden > to court. Now, the first question pops up: which is the court? The soon > almighty International Court of Justice? Doesn't have to be, right? > Denmark and Sweden can have chosen the North European Court of Justice > (not yet invented of course) to decide in these matters. Or the > International Court of Global Environment. Or the Court for All Disputes > Where the Participants Start with Consonants (CADWPSC). In short: the > choice of court is arbitrary (but agreement on where to settle the > conflicts has to be made beforehand of course). > Ok, I see a vision here and a very appealing one. But: won't it be crazy > with all these judicial disputes about who's in charge? It would be, but would there necessarily be so many disputes? Would there be more judicial disputes than today? I mean, in today's situation you can almost be certain that any contentious decision will be appealed all the way right up to the top court. Or courts. [As a side issue, i think one reason why many environment and human rights groups are so keen on federalism is that it gives them more basis to appeal against local and regional decisions they don't like. We are likely to see the Australian government being taken right up to the International Court of Justice soon, because of their stance on native title (or was it the Jabiluka uranium mine -- well, that also has to do with native title). I am not convinced that this is a good reason. I think it is a rather short-sighted attitude, to be honest.] But back to the point. As you say further on, people could just adjust to the situation and work around issues -- and bilateral discussions and mediation should be tried before going to the courts. Also, in some cases an option would be to go back to the people directly concerned ... I think what i'm trying to get through is that the demarcation disputes you are worried about are more or less the cases that would end up being appealed to the federal court in a federal system. So the crucial questions are 1) Will the possible proliferation of courts invite a proliferation of appeals to different courts? Cf the situation today where a decision may be appealed both to the ECJ and the ECHR. But if countries (regions, whatever) have nominated one court for resolution of each potential area of dispute, this should not be a problem. 2) Will there be demarcation disputes between courts? That is really the nightmare scenario. I think the answer to 1) is also the answer to 2). 3) Will it still be possible to appeal to a higher (World) court? I'd say only if there are international treaties covering the area (and which don't have their own court). In other cases, the process defined under 1) should exhaust the possibilites for appeals. In fact, this might ensure there are *less*, not more court cases than in a federal system where you normally can have a quite long appeals process. And decisions are kept closer to those they concern... > Much time in the New Europe of Regional System-Transforming > Functionalism might be devoted to judicial disputes. Won't the > courts get politicized very quickly? Are you telling me the courts are not already politicised? The US Supreme Court is a highly political body. The European Court of Justice and European Court of Human Rights are political -- the former even has an explicit federalist agenda. The Australian High Court is political -- it has played an essential role in the increasing centralisation of this country -- and is rapidly becoming more so, thanks to court cases on issues such as native title and free speech. *Any* 'supreme' court with any clout and with a brief on contentious issues will be politicised very quickly. I don't think federalism has any advantages over functionalism here, perhaps quite the opposite is the case. > And who wouldn't like to bribe a judge? Will we be electing judges > to the North European Court of Justice? Who are we who elect them? > Or maybe, who are _they_ who elect them?* I want to know because > these people will possibly eventually decide whether there will be > built a bridge between Helsingør and Helsingborg. Of course, this > problem is introduced already in the federal model but is > accentuated in the functional model. Is it? The only extra problem i can see is the increased employment opportunities for judges ... and not everyone will think this is a problem :-) > I understand that this can be said to be just the principles of > international law applied to smaller communities. Then, one needs to > consider why international law has not had a bigger success than it has > had (well, I know you tend to point out when the results are > underestimated by participants in this group). There is the question of > how to sanction a party breaking his contracts. Will this be regulated > by isolating participants etc? I think we should first distinguish between demarcation disputes (like your example above) and disputes under common international treaties. The latter can (and in the future, probably will) include their own enforcement mechanisms. So you say we need some mechanism for enforcement of arbitrations in 'civil' cases (demarcation disputes) between states etc. One would hope that in practice, these enforcement mechanisms won't be necessary -- most people, and most small countries at least, want to be seen as law-abiding citizens, and that is sufficient enforcement. But we also know that larger countries routinely flout international law, and some smaller countries do so as well (Israel, for instance). So i guess you're right... Actually, there is no particular reason why the treaty establishing a particular court should not also include an enforcement mechanism -- presumably some kind of economic sanction (fines, or a freeze on funds, being the primary 'punishments'). Problem solved? > Some of the problem with functionalism vs *neofunctionalism* I think > lies in that regional functionalism just finds a very good final model > but it's a static model. It doesn't take into considerations political > realities like how it works in practise getting there starting from > today's world. What are the forces that can bring it about? I think i'd rely not so much on states 'giving' power to regions as on people 'taking' power from the states. There are lots of regionalist and other democratic movements around the place. And most of them are very interested in working with other regions -- on their terms, not those of the 'nation states'. A lot of regionalist and 'mini-nationalist' movements already cooperate closely with their relatives in other regions. For instance, the Scottish and Welsh nationalists will undoubtedly be working for close cooperation between Scotland and Wales -- and, if possible, with other Celtic regions of the British Isles. So, basically, my dynamics is based on grassroots movements (successfully) demanding devolution, and then entering into sensible partnerships. > Are the nation states enough interested in transferring powers to > international institutions just like that (= letting go of power for > the politicians) or are the clever spill-over effects from > neofunctionalism needed (ok, a more "primitive" type of functional > spill-over *is* part of the functionalistic theory - but not the > other types of spill-over at all). I think you are being very elitist here -- as if all change could only come from the top. That is simply not true. > To me, it's quite clear that neofunctionalism has given us a very fast > integration for Europe (which I think give hopes for my regions) while > functionalism has given us things like the Nordic council that is a very > limited type of integration. Well, you know that 'integration' is not my aim ... so i'll pass on that one. > We're getting a regionally elected parliament in Scania in 1999. > At times, I'm told that it's not necessary. "The municipalities can form > their own regional leagues. What do you need a regional parliament for?" > Well, they *can* but the answer is more complicated and has to do with > having a political arena for regional politics and not least: political > spill-over. One has to think less static then. I think i'm confused here. What are you trying to say? What precisely is the difference between a Scanian parliament and a regional league of Scanian municipalities? Why couldn't the Scanian municipalities have set up the parliament? > In the depicted Scanian example, if the North European Court of Justice > grants Sweden the right to stop the construction of the bridge and > Denmark refuses to take notice, what can be done? On the other hand, > what can be done today if Schleswig-Holstein refuses to follow a > decision made by the German Surpreme Court? We expect and trust them not > to. That's basically it. We can't (and don't want to) use military > violence in the west today anymore. Is that your anwer to your previous question about enforcement of court decisions? In that case, i guess that's my answer as well. *If* Slesvig-Holstein refuses to take notice of the German Supreme Court, refuse to pay their fines, etc, there's not a lot the Court can do bar sending in the troops (and they don't want to do that). *If* Denmark refuses to take notice of the North European Court of Arbitration, refuse to pay their fines, etc, there's not a lot the Court can do bar calling for the UN or OSCE to send in troops, and they don't want to do that. Of course, Denmark's (Slesvig-Holstein's) standing with their neighbours will take a huge dive, which will probably harm their economy and the prestige of the leaders... > Are nation states (including federal > states) today's solutions to the lack of faith we have in territories > and their populations regulating their businesses among themselves with > some threat of violence lieing (Jesus, how do you spell lie-ing!?) lying > behind it all. In the nation states, there can be said to lie a > conceiled threat of use of force even though it hardly can be used > anymore in the western democracies. Or can it? By arresting the leaders > who are breaking the law? It maybe doesn't need to be military violence > that is today's way of sanctioning violations of intrastate "treaties". > Violence of the police may be closer to today's ultimate threat (before > the fines and all that). ... but violence of the police is only a threat on the domestic scene. Ok, you could use police to arrest leaders who refuse to follow international law, but i'm not sure how useful that would be. In federal or international disputes, the police cannot be a participant -- witness the standoffs between federal and local police in various places. I think the ultimate international threat is really economic sanctions (and travel bans etc) of various kinds -- though the blunt instrument of trade embargoes is becoming pretty discredited, more targeted sanctions may be useful. > No, the regional model of system-transforming functionalism is not a > federal model. It refuses to be bound by the hierarchical structure of > federalism with its exclusive horizontal authorities and powers. > Federalism introduces constitutional power sharing that the unitary > state can't conceive of being such a primitive creation. You added the > idea of horizontal power sharing which I find very interesting but I > still have my doubts about its practicability. > Further, most important for our initial discussion is whether nation > state Europe or federal Europe is the best starting point to achieve it. > For the nation states, I grant that functionalism is easier to reach > from nation state Europe. It's international law. It's there to use. And > in fact, EU federalism _disturbs_ it. But from a regional point of view, > pragmatic functionalism doesn't mean much. The kind of true community > autonomy that can be reached that way is very small. That Sweden can > form one binding union with Norway concerning specific issues and > another one with Denmark concerning others is not so important for the > respective parts the countries consist of. Functionalism and federalism > are especially interesting when truly communitarian political entities > are discussed. I'd say that federalism in Europe can create the basic > ground for regional system-transforming functionalism (RSTF) by > releasing political powers, postitive circles and momenta (in short: > spill-over (with the help of neofunctionalism)) that helps empowering > the regions which then can lead to adjusting federalism (big > adjustments, changing the system - more on that next) to give the choice > of RSTF. With nation state Europe and functionalism, nothing happens for > the regions and communities IMHO. History, I'd say, tells us that. I'm not so sure i agree. I think history tells us quite a few things about federalism, not least that once power has been transferred to the federal level, it never comes back, but the federal level sucks up more and more power. Also, i cannot see a federal government demanding, or even assisting, the break-up of one of its constituent states (counter-example: Yugoslavia giving autonomous status to Kosovo and Vojvodina, but i don't think that's a good example of a true federal state, and anyway, look how it's ended). True, it may allow some limited cooperation between constituent states within the federation, but that's no more than can be achieved in a functional international framework. And i believe a federation will be *very* reluctant to give any power to regional bodies which *transcend* the borders of the federation. A bottom-up transformation of the nation-states may still be a long way off, but i'd say it's much more likely to give real power to the regions and local communities than the top-down approach you appear to advocate. > Can federalism and RSTF co-exist? Consider the example of Switzerland. > There is a central ("federal") level and a cantonal level with 23 > cantons (which btw are of sizes somewhat close to my ideal commuting > distance size). In Switzerland, the powers of the central level are > defined and the cantons get the residual powers. To know some of what > regulates the affairs between cantons, I quote my essay (chapter 5) on > http://www.df.lth.se/~cml/fed-integr-dd.txt : [...] > So, RSTF is unlawful today in Switzerland. The cantons can't create > common institutions to which they can delegate their powers. But you can > change this and make it legal *even in a federal state*. So the > provinces can create an institution common for the French speaking > cantons that takes care of linguistc questions and another one for the > urban cantons that makes the decisions concerning typical urban > political problems. All this can happen within a federal state. And then > you even have a central level that can enforce the treaties with the > threat of violence as the last resort. I don't disagree with this. But the crucial word here is *within*. It will be confined to the existing structures of the federal country. And it does not allow for cross-border cooperation without the involvement of the federal level. What if Jura and Neuchatel wanted to form a regional council with the neighbouring French départements? Or Zürich and Basel wanted to form a body with say Amsterdam and København to tackle certain urban problems? > If you find that the characteristics of RSTF are nicer than the old > federalism, you can gradually take powers from the central level and > let the cantons form their own super cantons among themselves > instead. Federalism and RSTF aren't mutually exclusive and > transitions in between the two can happen. > That I support a federal development of the EU doesn't mean that I > exclude RSTF forever. I might want to support *that* development when I > see that the regions have been enough empowered by the federal one to be > able to demand other arrangements in a challenge. And I might want to > wait until I see so much stability that I don't think the threat of > violence is necessary for it to work. I'm afraid you'd be waiting a long time for the empowerment of the regions in your approach. I think your last criterion is fulfilled already today. [EMU vs regional currencies] > *) I think Mårten Lindström open my eyes a bit further concerning this > in an article in which he followed up to yours. He kind of gave me a > vision of a Europe which works everywhere and over great distances in > the same way I most of all wish the regions around Scania would work > together, that is with no more artificial borders than we have in the > nation states. He kind of extended my thoughts of having economic, > political, social transactions unrestrained in my region to having the > same economic, political, social climate in all of Europe. But why? Why *should* there be the same economic, political, social climate in all of Europe? I don't see any reason for it. In fact, i think it would be undesirable? And if we have the same economic, political and social climate, why not the same cultural, educational and linguistic climate? > > I have said before that I am in favour of the idea of variable > > geometry. I see this as a development towards the kind of Europe > > (and world) I would like to see -- it chimes in quite well with my > > idea of overlapping, non-exclusive institutions. If the EU moves > > in that direction, I would reconsider my opposition -- but then > > again, in such a Europe the question would not be whether you're > > "in" or "out", but *what* you are in and out of. > > Now I suddenly get confused. Is this the same thing as the so scoffed at > "Europe à la carte"? Or "Europe à la carte" only involved one power > center whose co-operation project you could or could decide not to > belong to? I think the words you use to describe it reveal your attitude. It's called variable geometry by those who like it and Europe à la carte by the knockers. I don't think there's any big difference. -- ______ __________________________________________________ / | | | jon | jon ivar skullerud | \______ | jskuller@physics.adelaide.edu.au | \ | http://www.physics.adelaide.edu.au/~jskuller/ | ivar | | Bicycle Institute of SA http://www.bisa.asn.au/ | _______/ |__________________________________________________|