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The relation between Federalism and Human Rights
Summary
This paper analyzed the relationship between federalism and human rights. It investigated the issue of whether federalism is the most suitable political system as far as international efforts to protect human rights are concerned. To achieve this goal, the paper focused on the limitations that federalism poses at both national and sub-national levels as well as the challenges encountered in efforts to align these two levels of constitutional with the current international human rights regime.
The paper found out that whereas many countries are moving towards the adoption of federalism as the ideal platform for the protection of human rights, critics who examine this system from the perspective of mature federalist systems such as the United States and Germany highlight numerous limitations in efforts by these countries to protect human rights. In the US, for example, a bipartisan Congress makes it impossible for the country to secure a two-thirds majority to ratify a treaty, international agreement, or convention. This compels actors in the international human rights debate to use a trade-off approach to bring most federalist countries to the negotiating table. This has triggered serious concerns about human rights issues being equated to national interests of sovereign states. It has also triggered fears about the possibility of abuse of the freedoms that sub-national levels of government benefit from primarily because of the “incomplete” nature of most federal constitutions.
This paper has concluded the trade-off approach adopted in most federalist systems easily tempts international human rights organizations to drive the human rights agenda based on national interests rather than on the basis on the principles of equality and nondiscrimination. In such a situation, the rights of minority groups at sub-national levels of government are likely to be subjected to discrimination and human rights violations
Contents
Human rights in the context of federalism.. 3
Concerns over national interest and federalism.. 8
Introduction
The environment in which international human rights are implemented varies in line with differences in political systems. In this case, one of the most common political systems is federalism. In federalism, two levels of government exist: state and federal levels. Today, many human rights laws are being enacted both locally and internationally. A major concern for human rights crusaders relates to the manner in which international human rights are being safeguarded in the context of the political philosophy of federalism. In some political systems, it is likely for the rights of minority groups to be ignored (Tushnet 843). It is not clear whether the same thing may be said as far as federalism is concerned.
In efforts to integrate international human rights into domestic laws of federalism in a country such as the US, many challenges are often encountered (Tran 29). The aim of this paper is to examine how international human rights norms being integrated into domestic laws in the context of federalism. This paper hypothesizes that federalism creates far-reaching restrictions on the adoption of international agreements that address human rights issues, meaning that it is hardly seems like a better enabler of human rights protection than other political systems.
Human rights in the context of federalism
Several countries have succeeded in rising to a stature where they can be referred to as mature federalist nations. The United States Switzerland, and Germany may stand out as the best examples of mature federalist nations (Tarr, Williams and Marko 53). In some other countries, it may be inaccurate to say that systems that are purely federalist in nature exist. For example, Italy and Spain are governed by what may be referred as a quasi-federal system. In Austria, federalism exists in a context of a highly homogenous population. India’s federal system contrasts sharply with that of Austria because of the country’s extraordinary diversity. Many other countries around the world are in the process of transitioning into federal systems. Examples of such countries include Russia, Herzegovina, Bosnia, and Belgium.
Germany has a rich tradition of federalism that has ultimately had a far-reaching impact on the way the rights of minorities are protected. However, this is not to say that the issue of minority protection is a dominant theme in discussions on federalism in the country. Today, the country is embroiled in a more pressing debate regarding a rapidly rising number of immigrants. At the national level, the country is faced with the task of addressing the issue of integration.
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In federalism, sub-national constitutions play a critical role in the way human rights issues are addressed. In the US, a dominant view is that federalism is detrimental to the rights of minority groups (Tarr, Williams and Marko 53). In contrast, many other countries view federalism as an ideal political system as far as efforts to promote human rights are concerned. In fact, this is the motivation behind the growing popularity and subsequent adoption of federalism around the world. Nevertheless, it is not difficult to point out situations where human rights protection remains a major challenge in mature federal systems.
In the US, federalism has been criticized for creating numerous restrictions on the way international agreements that address human rights issues are adopted. Such agreements must gain the approval of a two-thirds majority in the Congress. In today’s bi-partisan Congress, it is impossible for such support to be secured. Consequently, trade-off approach is often adopted, whereby the US government is required to fulfill a specific requirement relating to international agreements on human rights before its national-interest issues can be responded to favorably. For example, the US has been receiving pressure in the context of international human rights agreements to facilitate the cessation of the death penalty on juveniles in states such as Virginia. In many cases, the US gets the assurance that upon responding positively, other countries will also respond favorably to its crucial foreign policy issue of extradition.
One of the most cited, examples of issues that relate to US national interest is that of the death penalty that was handed to Breard, a Paraguay national (Tushnet, 848). Breard lodged an appeal to the Vienna Convention on Consular Relations to fight extradition to the US (Tushnet, 848). Another example is that Jens Soering and his girlfriend, who conspired to commit a crime of murder (Tushnet, 849). In this case, provisions of the European Court of Human rights as well as the European Convention on Human Rights were put in focus. In the context of these two cases, two dimensions relating to human rights in the context of federalism can be discerned. The first one is restriction on the scope of congressional power. This restriction is evident in the context of numerous issues relating to human rights such as the quest for gun-free school zones, legislation on violence against women, and religious freedom. The second dimension relates to restrictions on methods at the disposal of congress to implement policies that are otherwise authorized by the US constitution.
In light of Breard Litigation, the Virginia court held the view that Congress should act only in situations where it can involve the powers enumerated in the US constitution. In the Jens Soering case, the court used what Tushnet (850) refers to as the “anti-commandeering principle”. The Breard death penalty litigation demonstrated that numerous restrictions tend to emerge in the context of federalism primarily because of the need to align international human rights agreements with two different levels of government. It also became evident that under US federalism, the ability by a state to prosecute ordinary crime may be adversely affected by the ways in which the obligation under a treaty is defined.
How federalism restricts the adoption of international human rights agreements at national and sub-national levels
Divergent views have emerged in recent years regarding the ability by federalism to promote human rights issues being discussed at the international level. Most countries view federalism as an ideal platform for ensuring compliance with international human rights treaties and agreements at national and sub-national levels. However, within the US, many dissenting voices have emerged that focus on a sharp criticism of federalism and its compatibility with the contemporary human rights regime. The dominant hypothesis in the US today is that many international agreements require national action with the possibility of intrusion into matters of great national concern. There is an assumption that the international human rights regime seeks to take over matters that would ordinarily be regulated at the state government level. For instance, a critical question is on whether the US constitution allows the country to enter into an international agreement that bans the death sentence of convicts who were juveniles at the time they committed a crime. Such questions create an obvious phenomenon whereby Congress is reluctant to endorse efforts to adopt the provisions of human rights treaties expansively.
One of the ways through which Congress demonstrates its reluctance to endorse provisions that create a platform for an expansive adoption of treaties is by introducing a “federalism” declaration in all international agreements that address human rights issues. In this declaration, Congress endeavors to express reservations regarding the applicability of certain provisions of these treaties at the state level. One of the reasons for this reluctance is the unwillingness by the federal government to embark on the unconstitutional practice of imposing too many restrictions on the operations of state governments. Moreover, in the US, the federal government is always careful not to be seen to be meddling in the affairs of individual states.
In the US, the ongoing discussion on international human rights and federalism is based on the assumption that the US has already entered into several international agreements that require action at the national level. It is also assumed that by taking action at the national level, the federal government would in essence be taking over matters that are ordinarily regulated at the state-government level. It is on the basis of this assumption that the federal government becomes reluctant to adopt the provisions of various international human rights agreements expansively.
In the US, hostility between Democrats and Republicans has had far-reaching implications on the way various international human rights treaties and agreements are entered into and implemented. Within the Democratic Party, internationalist and human rights have over the years made accession to various international agreements a priority issue. They have in some cases been supported by internationalist crusaders operating within the Republican Party. On the overall, however, the Republican Party has tended to appear more skeptical of most international human rights institutions than the Democratic Party. This is reflected in the major divisions that tend to occur in the Senate on most foreign policy issues. To secure bipartisan support, democrats have had to introduce federalism declarations. As sharper divisions continue to emerge today, it becomes increasingly unlikely that the US will enter into international agreements and treaties that raise serious questions relating to federalism.
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It is unlikely that the US will enter into new agreements that turn out to be problematic. Although this seems like a good thing for constitutional order in the US, it reflects negatively on the international human rights regime. Moreover, on the part of the US, the issue of past agreements that have turned out to be highly problematic remains unresolved. In this case, commentators may blame federal leaders in the US for not being careful in their assessment of the implications of these treaties and agreements in terms of implementation. In the face of skepticism on the part of some leaders along partisan lines regarding the implementation of treaties, Congress is likely to use these treaties as a basis for enacting laws it could not otherwise be willing to enact. Another scenario is one where existing agreements are judged as unambiguous. A case in point is the Vienna Convention, which is straightforward in the way it commands police officials at the state level to take specific actions (Stephens 129). In this case, the courts may seek to remedy any ambiguous provisions contained in treaties while leaving matters to do with the underlying obligation intact.
Even after the issue of ambiguity has been conclusively dispensed with, more fundamental questions about the interaction between federalism and international human rights regime have tended to arise (Tushnet 850). It is widely held that countries that operate as federalist nations must transform their constitutional doctrines in an evolutionary way to enable them accommodate various provisions of international human rights agreements. Whenever this challenge arises, courts are put in the limelight because of their critical role in the development of constitutional doctrines. In the US, for instance, the Supreme Court has the power to introduce constitutional doctrines that define ways of regulating international affairs that impose limitations on the exercise of power at the national level, thereby helping protect federalism.
Concerns over national interest and federalism
Two major limitations are normally pointed out with regard to the implementation of international human rights; the first one is national interest while the second one is the inherent nature of federalism (Tushnet 856). To safeguard national interest, Congress has recently attempted to direct officials at the state level to enforce specific national policies. In this regard, Congress sets out to reaffirm its power over both state and international affairs.
To address limitations arising from the inherent nature of federalism, US courts have traditionally been referring to the Commerce Clause (Powell 268). The Commerce Clause grants Congress the power to regulate all commercial activities have a substantial impact on interstate commerce (Powell 268). Evidently, the most crucial thing at this point is to differentiate between commercial and non-commercial activities. It is imperative that this distinction is made to ensure that Congress does not abuse its authority by regulating all activities at whim simply because a plenary majority has been secured.
In the context of federalism in the US, it has become difficult for policymakers to develop coherent approaches that address the limitations attributed to federal power and national interest in the context o international affairs. A major problem is that the US Supreme Court’s decisions relating to federalism have tended to focus on ways through which congressional power can be exercised in innovative ways to ensure that the US does not appear to be reneging on its international human rights obligations. This continues to be the case even in situations where the constitution is unambiguous in the way it gives Congress the power to punish offenses against the so-called “Laws of Nations” (Tushnet 857). It is worthwhile to note that in most cases, these laws of nations happen to be the subject of state criminal law.
One limitations arising from the limitations of both national interest and federalism is the decision by the federal government to ratify early treaties that overrode state laws barring aliens from owning property in real estate. Such an issue might be said to fall within the realm of land use regulation by US courts. This assumption may be allowed to stand despite the fact that no one at the time of ratification thought that Congress had the power to prescribe rules of real property ownership that are applicable in the states. These limitations raise fundamental questions regarding the appropriateness of federalism in efforts to implement various provisions outlined in different international human rights agreements and treaties.
Another limitation is that in today’s globalized world, it is becoming increasingly difficult to draw the line between international matters and domestic ones. According to Tushnet, this distinction is more difficult to draw than that between commercial and non-commercial operations (856). In the case of the US, this difficulty is reflected in the challenges being encountered in efforts to define the country’s foreign relations. The US constitution assigns the work of defining the country’s foreign policy to specific political branches that have been empowered through the established of appropriate structures and expertise.
At the same time, it is imperative that that a proper definition is provided regarding what constitutes an international agreement. This issue remains contentious because of the conventional understanding that it is practically implausible for all actors in international politics to come to an agreement on a specific issue. Even on matters pertaining human rights, disagreements have tended to arise. Some states are wary of situations where rogue governments commit atrocities in the pretext of protecting the fundamental human rights of a section of the population.
The prospect of international consensus on human rights issues seems implausible because of the ever-present temptation to use a trade-off approach in all discussions arising on international platforms. In such scenarios, negotiating partners often see the discussions as an occasion for raising numerous unrelated issues. For example, the negotiators may notice that the US is enthusiastic about the need to extradite individuals charged with money-laundering at the federal level. Consequently, they may agree to these extradition provisions only if the US to agree to delay the execution of foreign offenders until they have been given an opportunity to communicate with their home-country embassy. The US president and the Senate might agree to such proposals only if they are of the view that they are worth the trade-off. This means federalism as a system of government creates a scenario whereby on its own, the issue of executing a foreign convict seems inappropriate as an issue of international agreement. This example also creates the impression that in the context of federalism, human rights issues are likely to be accorded different levels of importance or relevance depending on the nature of the trade-off made as different countries seek to safeguard their national interests.
The challenge of implementing international human rights in the context of sub-national constitutional arrangements
In all federal systems, a national constitution exists alongside sub-national constitutions that define the extent to which sub-national entities should undertake their activities autonomously. The national constitution establishes national institutions, divides power to different arms of government, and provides guidelines on how alterations in the existing model of governance can be altered. Some federations are founded on constitutions that prescribe the different political institutions and processes that should govern the operations of various sub-national units as well. This arrangement is mostly common in countries that used to exist as unitary nations before decentralizing into federal systems. In other federations the national constitution tends to be incomplete in the sense that it leaves considerable space in the constitutional architecture of the nation to be filled by constitutions that may vary from one sub-national unit to the other. The national constitution provides room for the existence of political communities at the sub-national level, thereby creating room for the formation of devolved or decentralized constitutional arrangements.
The amount of space that the national constitution leaves for allocation to sub-national political communities varies from one federal system. The underlying objective in all these systems, however, is to enable the sub-national units establish their own priorities, goals as well as adapt the national constitution to their specific realities and circumstances. National constitutions that provide fewer details naturally create a bigger constitutional space for the sub-national space. This tends to have far-reaching implications for the ability by federal governments to commandeer state governments into adopting certain international human rights agreements. Conventionally, federal governments are expected to provide direction to sub-national governments regarding membership into different human rights conventions. When federal governments fail to provide such a direction, an implementation gap is likely to exist, leading to human rights violations. For example, a federal government may abolish the death penalty but at the same time give states the freedom to decide on whether to implement death penalty provisions. By refusing to ratify human rights agreements and treaties aimed at abolishing the death penalty, the federal government would be seen to be standing in the way of efforts to safeguard and protect international human rights.
From the point of view of international human rights advocates, the language of incompleteness is an indication of inadequacy on the part of the federal system. In situations where there is a preference for the language of completeness, efforts are normally made to emphasize on value judgments that indicate that a complete federal constitutions is better. In such a judgment, the idea of federal constitutionalism tends to be superimposed on that of a national perspective. It is also common for scholars who avoid critical empirical questions to adopt a middle ground, whereby sub-national and federal constitutions are taken to be interdependent (Tarr, Williams and Marko 4). On this basis, these scholars argue that an objective analysis of the constitutional federalism of the US should be based on the assumption that state and federal constitutions operate together as an interconnected whole (Tarr, Williams and Marko 4).
For critics of federalism to gain enough evidence to use as a basis for dismissing the ability by federal systems to facilitate compliance with international human rights, they are compelled to adopt the language of incompleteness. These critics fail to see each sub-national constitution as a distinct force that contributes to the shaping up of the national constitutional environment. They argue that those distinct forces may limit the enforcement of human rights because they are dependent upon and limited by the very environment that they help to shape.
The social institutions that exist at the state and federal levels may not always provide an ideal environment for the protection of international human rights. As a country endeavors to safeguard its constitutional structure and practices, it is likely to articulate and adopt policies that are in contravention of the human rights of people from other countries. This problem is likely to persist in conservative states that take advantage of the “incompleteness” of the federal constitution to pass laws that violate fundamental human rights of minority groups.
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To understand the limitations posed by federalism in the protection of international human rights, a sub-national perspective should be adopted. Scholars should avoid relying too much on the national perspective, which put a lot of emphasis on the powers that are wielded at the national level. In most cases, this debate tends to unfold at the expense of a candid discussion on the constraints posed by the existence of numerous, diverse, sub-national constitutions. It may also important to focus on the all-important issue of whether the existing federal arrangements are integrative or devolutionary. Integrative arrangements primarily exist in federal systems whereby sub-national units used to exist as sovereign states. On the other hand, devolutionary arrangements are used in situations where a country used to exist as a unitary state before adopting federalism.
The sub-national viewpoint primarily focuses on low-visibility constitutions and their contribution to the national political fabric. Through such an analysis, one is able to reveal a lot of information regarding the contributions that the sub-national institutions may have contributed to the national fabric. In this viewpoint, focus is on two important issues. The fist one is the range of discretion available for the sub-national units to come up with their own constitutional arrangements. The second issue is the extent to which sub-national units have occupied or abuse the constitutional space or discretion allocated to them.
The concept of equality tends to emerge in most discussions on human rights. When minority groups are not treated with equality, claims of human rights violations are likely to arise, which are often followed by discontent. The greatest risk of human rights violations occurs in the context of federal systems where sub-national boundaries are drawn on the basis of ethnic, racial, religious, or denominational and political considerations. In such cases, conflicts are likely to emerge, thereby increasing the likelihood of human rights violations. Therefore, the debate on equality tends to be inevitably intertwined with that of federalism, sub-national constitutional arrangements, protection of minorities, and international human rights violations.
In the present discussion, the most crucial question is on whether equality is more likely to be enhanced in the context of federalism than in the context of other systems of government such as unitary systems. One of the dimensions of equality that should be focused in this case is equality before the law. In federal systems, people of different sub-national entities tend to be subjected to slightly different laws. In the US, for example, some states allow the death penalty to be implemented while others prohibit it. In such situations, it seems that principle of equality before the law tends to be violated. Therefore, it would seem that a unitary system of government put the world in a better position to move towards the attainment of the principle of equality at the international level. Unlike the unitary system, federalism permits legal variations at the sub-national level, meaning that it makes it increasingly difficult for the universal objective of equality before the law to be achieved. The presupposition in this case is the principle of equality before the law is critical in efforts to ensure that international human rights obligations are met.
Whereas federalism may facilitate the achievement of formal equality, the unitary system may be in a better position to facilitate the attainment of real or substantive equality. This is simply because a unitary system of government places a country closer to scrutiny by the international human rights regime. Whenever human rights conventions are held, leaders of unitary states are said to represent all entities that make up the sovereign state in a holistic manner. No constitutional interpretations can be introduced midstream to antagonize the position taken by the chief executive of a sovereign state. In contrasts, the chief executive of a federal government may easily have his position overturned by a constitutional interpretation of the highest court of the land. Moreover, sub-national entities such as states and provinces may choose to exercise the authority to retain provisions that contravene the ideals of international human rights simply because of the “incompleteness” of the federal constitution (Stephens 135).
In the discussion on the relationship between federalism and human rights, one may also want to focus on the notions of open and closed nondiscrimination models (Tarr, Williams and Marko 19). An example of open nondiscrimination is the one practiced by the European Convention on Human Rights. This convention provides an elaborate description of the grounds on which discrimination may be said to have occurred. At the same time, the description outlines situations where differentiation should not be interpreted as a case of discrimination. Towards this end, objective justification is required. An assessment of comparable situations should be carried out to determine whether the means have been differentiated from the aim to the same extent. On the other hand, the open model adopts a flexible platform on which many possible differentiations are conceived and justified (Tarr, Williams and Marko 20). In this case, all possible grounds of discrimination are enumerated. Moreover, discrimination on all these grounds is strictly prohibited. The situation should only be different in situations where exceptions have been provided through an act, treaty, international agreement, or convention.
An analysis of open and closed nondiscrimination models may be necessary in efforts to highlight the limitations posed by federalism in the pursuit of international human rights. In the United States, for example, different levels of scrutiny may be derived. One level is provided by the new case law of the country’s Supreme. Another level of scrutiny is that of the jurisprudence of the European Court of Justice and the Council of Europe (European Court of Human Rights). After assessing differential treatment with a view to attain compatibility with nondiscrimination, US courts tend to settle for a rather marginal scrutiny, whereby they grant a wide margin of discretion to the public authorities concerned (Tarr, Williams and Marko 26).
International human rights activists have traditionally been opposed to a marginal scrutiny of grounds for non-discrimination since it allows federal authorities to get away with numerous human rights violations (Tarr, Williams and Marko 27). This is a valid concern given the grounds of differentiation that these authorities are likely to point out are practically innumerable. At the same time, all of these grounds are not equally suspect, meaning that serious human rights violations are likely to persist for a long time before someone raises alarm. In most cases, human rights violations that go unnoticed in the context of federal systems are those that affect minority groups within those federations. Such minority groups may have no one to turn to except international human rights organizations. Both sub-national and federal authorities may be too preoccupied with more politically explosive issues to take notice of the discrimination against minorities. In some cases, the discrimination campaign may be a part of wider scheme by conservative elements within the country to ensure that minority groups do not offset the traditional socio-cultural fabric of the nation.
Conclusion
In conclusion, it is evident that the environment in which international human rights are implemented varies depending on the prevailing political system. The political system that this paper has discussed is federalism. In federalism, the biggest challenge is that of aligning sub-national and national constitutions to the existing international human regime. This paper has extensively highlighted the example of the federalism in the United States, where it is impossible for Congress to secure a two-thirds majority vote to ratify an international human rights treaty. Consequently, stakeholders in the international human rights regime are compelled to adopt a trade-off approach. In such an approach, the glaring limitations of federalism, particularly in comparison to unitary systems of government, become evident. For instance, the trade-off approach adopted in most federalist systems easily tempts international human rights organizations to drive the human rights agenda based on national interests rather than on the basis on the principles of equality and nondiscrimination.
Works Cited
Powell, Catherine. “Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States”, University of Pennsylvania Law Review,150.1 (2001): 245-295.
Stephens, Beth. International Human Rights Litigation in United States Courts, Leiden: Nijhoff Publishers, 2008. Print.
Tarr, George., Williams, Robert., and Marko, Joseph. Federalism, Subnational Constitutions and Minority Rights. Westport: Praeger Publishers, 2004. Print.
Tran, Luan-Vu. Human Rights and Federalism: A Comparative Study on Freedom, Democracy and Cultural Diversity, Leiden: Martinus Nijhoff Publishers, 2000, Print.
Tushnet, Mark. “Federalism and International Human Rights in the New Constitutional Order”, The Wayne Law Review, 47, (2001): 841-869.
