From federalism to confederalism, A way of learning to live together in Iraq and in Belgium?

Erbil, Kurdistan, Iraq, October 8, 2022

 

1. Freedom for a creative thinking

If there is one aspect of the Belgium institutional system that may be of interest to Iraq and its state components, it is the undeniable freedom that has been evident in the evolution of federalism and its inherent seeds of confederalism, probably since it was introduced in 1970 [1]. This approach requires us to abandon the long-standing methodological divisions of constitutional law and political science, which differentiate these two concepts in very contrasting ways to incorporate the idea that federalism and confederalism are similar and even that it is possible to move from one to the other, particularly from the federal system to the confederal system [2]. Yet it is generally the opposite path that is adopted.

We should all remember the address to the people of New York State in late November 1787, published in The Federalist, issue 9. In it, one of the fathers of the American Constitution, Alexander Hamilton (1757-1804), quotes at length the treatise by Montesquieu (1689-1755) entitled L’esprit des Lois and his definition of the République fédérative, which Hamilton translates as Confederate Republic. Hamilton also notes the definition given by Montesquieu: a convention by which several smaller states agree to become members of a larger one, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body [3].

From this definition of confederalism, or federative State, Hamilton then moves on to the definition of federation which he himself advocates: The definition of a Confederate republic seems simply to be « an assemblage of societies » or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, make them constituents of the national sovereignty, by allowing them a direct representation to the Senate, and leave in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government [4].

One of our most brilliant professors of constitutional law in Wallonia, who was also the Belgian minister for State reform more than fifty years ago, noted that, despite the abundant literature on federalism in the field of political science, it was still unclear where a (con)federation of States ended and a federal State began. His solution was to consider that it was the volume of powers devolved to the central government that was important: if the volume was low, it was a confederal system, if it was high, a federal State [5]. One of this professor’s illustrious predecessors at the University of Liège observed that, in the federal system, the central government has the right to make laws and to impose them on its officials in the fields of justice, law enforcement and tax, and, therefore, to have a direct influence on all the citizens in the Union. In a confederal system, or a system of a federation of States, the central government has relations only with those federated or confederated States and it can only reach the citizens through those States [6]. Nevertheless, this rationale highlights the issue of the durability of the whole and, therefore, the purpose of the federal or confederal system: the supremacy of a common good or a general interest over collective self-interests or individual interests, along with the conviction that each entity accepts and plays their part in the State and societal “family”.

It is also necessary – with the benefit of the Belgian experience still at play – to consider that the possible direction of movement is not only from a confederal model to a federal model, as seen in the United States or Switzerland, but also from a federal system to a confederal system. I am aware that this may anger certain dogmatic constitutionalists as well as certain representatives of the institutional inertia in Belgium, sometimes one and the same. However, there are often major differences to be seen between model and reality, between map and terrain.

 

2. Belgian federalism today

Belgium’s structure today is unique. Although strong traces of state unitarism and centralisation remain, certain traits attributable to federalism are evident, as well as some linked to confederalism. This Belgium is no longer bipolar as it was in the 19th century. It has become culturally, socially, politically and institutionally more complex.

Flanders (6.6 million inhabitants) and Wallonia (3.6 million inhabitants) have achieved the status of political regions with broad, effective autonomy, but not without some difficulty. The Brussels capital-region, the bilingual meeting place, both legally and highly theoretically, of the Flemish and the Walloon populations, has become more multicultural and genuinely international. In addition, it has achieved the enviable position of being one of the capitals of Europe, and even The capital of the Union and its institutions. Lastly, to the surprise of many, Brussels as a region emerged institutionally in 1989, even though it represents only 0.5% of Belgian territory. Another important fact is the considerable mobility of its population of 1.2 million inhabitants: in the space of twenty years, since 2000, more than 1,500,000 people have settled in Brussels and 1,400,000 have departed for other regions or countries. This demographic fluidity poses problems in terms of taxation and, therefore, in terms of the evolution of the powers and institutions of federalism [7]. In the East of Belgium, the world wars have left their mark through the integration of German populations. This area was recognised in the State reforms as a third community of fewer than 80,000 inhabitants and is now, in effect, already a fourth region due to the nature of the powers acquired.

Some professors of constitutional law have observed that, since 1970, Belgium has been characterised by a confederal decision-making process at the central State level, highlighting in particular the constitutional parity between French speakers and Dutch speakers in the Council of Ministers [8], and underlining the unanimous or qualified majority rule required for decision-making among the various components of the State. The use of cooperation agreements in the field of treaty negotiations and the representation of Belgium within the international bodies may also suggest that the federalism stage has already passed. In 1993, a renowned Flemish constitutionalist concluded that, by acknowledging the right of veto of the major communities not only at their federated entity level but also in relation to the implementation of policies which had remained federal, Belgium was moving in a direction which bore some resemblance to the decision-making systems used in a confederation [9]. Two researchers at the University of Liège made the same observation in 2014, noting the shared competence in international relations and the fact that the communities, regions and State were able to conclude mutual cooperation agreements which resembled treaties between subjects of international law (Article 92bis of the special law on institutional reforms of 8 August 1980) [10].

 

3. The confederalist paradigm

The confederalism being discussed today by the political parties in Belgium is a controversial idea. Demanded by the majority of the leftist parties of Wallonia (socialists, liberals and communists) after the Second World War, and advocated by French-speaking intellectuals until the 1980s, the term confederalism became laden with negative connotations when it was demonised by the liberals in Wallonia and Brussels at the beginning of the 1990s. Since it tended to be regarded as an extension of federalism, the term came back into use from 1994, and was then affirmed at various moments in political life by several key members of the major Flemish parties. Conversely, the more prominent it became in Flemish political discourse, the more the French-speaking political parties rebelled against the idea, claiming that confederalism would lead directly to separatism, the break-up of Belgium, and the independence of Flanders.

It was the nationalist party, Nieuw-Vlaamse Alliantie (NVA), New Flemish Alliance, which, in Belgium, developed the most recent and elaborate plan for confederalism. Rejecting the idea, which it considered academic, that this concept suggested collaboration between two independent States, one of their leaders, a political scientist at the University of Ghent, also defined confederalism as an advanced autonomy of federated entities, such that they exercise their powers as close to the people as possible while retaining sovereign powers at the federal or confederal level [11].

The NVA developed a Belgian State reform plan ahead of the 2014 elections and argued in favour of it again in 2019 [12]. In this model, the Confederation would be responsible for Defence, Foreign Affairs, Finance, the conditions for granting nationality, asylum, the Court of Cassation and the Constitutional Court, and tackling major crime. The parity confederal government would be composed of six ministers appointed by Flanders and Wallonia.

The 50 confederal deputies would be chosen on a parity basis from the Flemish and Walloon parliaments, with guaranteed representation for the Brussels and German-speaking regions. People in the Brussels region who opted for the Dutch-language tax and social system would help to elect the Flemish parliament; those who chose the French-language system would vote for the Parliament of Wallonia. Flanders and Wallonia would be given all the remaining powers, including collecting personal income tax (IPP), apart from those specifically assigned to the Confederation. Brussels would have control over its economic policy, including corporation tax and employment aid, as well as its current responsibilities for housing, environment, land management, etc. However, its inhabitants would be linked to one of the two Flemish or Walloon social security systems. The Region would be managed by a parity government accountable to a parliament of 70 deputies, including a guaranteed representation of 15 Dutch-speakers. Solidarity between the different entities would remain. It would be organised on an ongoing basis by mobilising confederal resources and would be quantifiable, transparent and empowering. A permanent Belgian Collaborative Council would be established, composed of the presidents of the confederated entities.

 

Conclusion: the way forward

Classic federalism, if such a thing exists, seems ill-suited to the three principles of Belgian federalism: 1. equivalence of rules, in other words, equality of legal power between federal law and the laws of the federated entities; 2. exclusivity of localised powers either at the federal level or at the level of the federated entities within their respective territories; 3. exclusive use, by the federated entities as well, of their international capacity in relation to the powers transferred to them, including the right to sign international treaties. We should add that two of the federated entities of the Belgian federal State – the Parliament of Flanders and the Parliament of Wallonia – have effective sovereignty in the exercise of their powers thanks to a system of direct and separate election of their members and a constitutive autonomy: a nascent constitutional authority.

Neither federalism nor confederalism are precise legal concepts. They are among the most complex terms in political science; above all, they are products of history. Federalism is described as being sui generis, self-created [13]. All over the world, the aim of the federalist rationale is to articulate these two great contradictory principles: the need for autonomy and the need for association. Sometimes this principle moves in a centripetal direction, which is the case in the United States or in the Europe under construction, and sometimes it assumes a centrifugal form, which is the case for Belgium. In Belgium, there is talk of a Belgian federalism of disintegration. For that reason, the current European Commissioner and lawyer Didier Reynders, when he was political party leader in 2007, told the Le Monde French newspaper that the rationale at play in Belgium was one of a confederation. The challenge, he continued, was for people who are already operating in different worlds to learn to live together [14].

My own preference is not for the confederalism being applied to Belgium but for a federalism of four States, all with the same rights and all exercising the same powerful responsibilities. But in a discussion involving four or five people, the way forward is seldom determined by one person alone.

 

Philippe Destatte

@PhD2050

 

[1]This text is the back-ground paper of my intervention at the conference about The Kurdish Question in the Middle East, jointly organised by The University of Soran, the French Research Center on Iraq and Science Po Grenoble, in Erbil, Kurdistan, Iraq, 8 octobre 2020.

[2] See : Philippe DESTATTE, (Con)federalism in Belgium is not a problem, it’s a solution, Conference (Con)federalism: cure or curse, Rethinking Belgium’s institutions in the European Context, 11th public event of the Re-Bel initiative, University Foundation, Brussels,19 June 2014. Blog PhD2050, June 25, 2014 https://phd2050.wordpress.com/2014/06/25/confederalism/ – Ph. DESTATTE dir., Le fédéralisme dans les États-nations, Regards croisés entre la Wallonie et le monde, Bruxelles, Presses interuniversitaires européennes, 1999. – Ph. DESTATTE, Le confédéralisme, spectre institutionnel, coll. Notre Histoire, Namur, Institut Destrée, 2021.

[3] The Federalist, A commentary on the Constitution of the United States, Being a Collection of Essays written in Support of the Constitution agreed upon September 17, 1787, by the Federal Convention, From the original text of Alexander HAMILTON, John JAY and James MADISON, p. 50-51, New York, Random House – The Modern Library, 1960. – Cette forme de gouvernement, écrivait Montesquieu, est une convention par laquelle plusieurs Corps politiques consentent à devenir citoyens d’un État plus grand qu’ils veulent former. C’est une société de sociétés, qui en font une nouvelle, qui peut s’agrandir par de nouveaux associés qui se sont unis. MONTESQUIEU, De l’esprit des lois, dans Œuvres complètes, t.2, p. 369, coll. La Pléiade, Paris, Gallimard, 1951.

[4] The Federalist, op. cit., p. 52-53.

[5] Fernand DEHOUSSE, Le fédéralisme et la question wallonne, Congrès des Socialistes wallons, 5 et 6 juillet 1947, p. 12-15, La Louvière, ICO, 1947.

[6] Émile de LAVELEYE, Le gouvernement dans la démocratie, t. 1, p. 71, Paris, Alcan, 1892.

[7] Philippe VAN PARIJS, The start of Brussels’ demographic decline? in The Brussels Times, 1st September 2022, https://www.brusselstimes.com/column/281867/the-start-of-brussels-demographic-decline

[8] Karel RIMANQUE, Réflexions concernant la question oratoire : y a-t-il un État belge ? dans Hugues DUMONT e.a. (dir.), Belgitude… p. 67. – Voir aussi Il n’existe pas d’État confédéral, dans L’Écho, 7 août 2007.

[9] Karel RIMANQUE, Le confédéralisme, dans Francis DELPEREE, La Constitution fédérale du 5 mai 1993, p. 31sv, Bruxelles, Bruylant, 1993.

[10] Michel PAQUES et Marie OLIVIER, La Belgique institutionnelle, Quelques points de repère, dans Benoît BAYENET, Henri CAPRON et Philippe LIEGEOIS éds., L’Espace Wallonie-Bruxelles, Voyage au bout de la Belgique, p. 60, Bruxelles, De Boeck, 2007.

[11] Pourquoi la N-VA choisit le confédéralisme, dans L’Écho, 4 janvier 2013. – Quel est le confédéralisme prôné par la N-VA ? dans L’Écho, 6 janvier 2013.

[12] N-VA, Verandering voor Vooruitgang, Congresteksten, 31 Januari – 1 & 2 Februari 2014, Antwerpen, 2013. 76 p. https ://www.n-va.be/sites/default/files/generated/files/ news-attachment/definitieve_congresbrochure.pdf – Le changement pour le progrès, 2e partie, N-VA, 30 octobre 2013, 15 p. https ://francais.n-va.be/sites/international.n-va.be/files/ generated/files/news-attachment/conference_de_presse_3010_-le_confederalisme_0.pdf – Ben WEYTS, Verandering voor Vooruitgang, 30 octobre 2013 https ://www.n-va.be/ nieuws/verandering-voor-vooruitgang

[13] Fernand DEHOUSSE, Les projets fédéralistes de 1938 à nos jours, dans Jacques LANOTTE éd., L’histoire du mouvement wallon, Journée d’étude de Charleroi, 26 février 1976, p. 27, Charleroi, Institut Destrée, 1978

[14] Christophe DE CAEVEL, Tabou confédéral, Édito, dans L’Écho, 13 novembre 2007. – Jean-Pierre STROOBANTS, En Belgique, « la logique est celle d’une confédération », Didier Reynders, libéral francophone, exige un « signal clair » des Flamands sur leur volonté de maintenir un État fédéral, dans Le Monde, 10 novembre 2007.

 

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