Foreign Relations & International Law

Federalism in the Middle East: A Collection of Essays

Mila Versteeg
Monday, August 13, 2018, 9:13 AM

Editor’s note: Over the next week, Lawfare will be running a series of essays on federalist governance in the Middle East. This introductory essay is the first in the series. Links to subsequent essays will be added to this post as they are published.

Demonstration in Banyas, Syria, April 2011 (Source; Wikimedia/Syrian Frames of Freedom)

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Editor’s note: Over the next week, Lawfare will be running a series of essays on federalist governance in the Middle East. This introductory essay is the first in the series. Links to subsequent essays will be added to this post as they are published.

Events of the last decade suggest a growing momentum for federalist governance around the world. In multi-ethnic countries like Nigeria and India, federalism has arguably helped to hold these nations together. More recently, citizens, NGOs, and policymakers have floated federalism-based restructuring proposals to help mitigate ethnic conflict in South Sudan and Somalia. In Myanmar, consensus is building that federalism might be essential to any lasting peace.

Why Federalism?

Why might federalism be appealing? Many of its benefits have been documented in the context of large, wealthy countries like the United States, Canada, Australia and Germany. Scholars have pointed to federalism’s benefits: drawing governments closer to their citizens, thereby enabling civic participation; promoting laboratories of democracy, in which subnational units can experiment with policy; permitting citizens to sort themselves by ideological and policy preferences; and, perhaps most importantly, empowering subnational units to resist overreaching central governments.

More recently, federalism has gained ground as a way to mitigate civil conflict based on sectarian divides. That approach differs in origin from U.S. federalism and other traditional federalism models: instead of previously independent political units forming a state (i.e., “coming-together” federalism), a unitary state devolves—and constitutionally protects—a set of powers to its sub-national units. This is instead a “holding-together” federalism, as Alfred Stepan describes it. The core insight here is that by granting some autonomy to regionally concentrated ethnic, political, or religious groups, federalism empowers these groups to govern themselves in ways that more closely track their preferences. The groups receive significant autonomy over key issues: schooling, official languages, and religious regulations. This power devolution decreases the stakes over control of the national government and reduces regional groups’ incentives for violence or secession. In other words, the idea is that, in a divided society, turning a perennial national political minority into an empowered regional majority can reduce conflict.

Federalism in the Middle East?

These ideas could resonate in the Middle East as well. Many countries in the region—Iraq, Syria, Lebanon, and Israel, for instance—have deep sectarian divides. Some territories in the region have demanded self-government in the past, such as Hijaz in Saudi Arabia, Cyrenaica in Libya, Kabylie in Algeria, and the Palestinian territories now occupied by Israel. What is more, Middle Eastern governments have historically featured unusually powerful unitary governments with few constraints on their authority. Federalism’s potential to reduce conflict by decentralizing power can therefore make it an attractive governance model for the region.

In the wake of the Arab Spring, federalism seemed more politically feasible than it was before. Since 2010, federalism has been proposed in one way or another in, for example, Lebanon, Yemen and Libya. Even before the Arab Spring, Iraq was among the first governments in the region to move to a federal system by devolving powers to its provinces. (Previously, the only federal state in the region was the United Arab Emirates.) Federalism could even be useful for Israel, both to accommodate religious divides within the country and as a partial solution to the Israeli-Palestinian conflict.

Of course, federalism carries potential downsides—chief among them the risk that granting regional autonomy can strengthen a minority group’s sense of identity, thereby bolstering demands for secession. In this sense, it runs counter to one core function of nation-building: the creation of a shared national identity that transcends tribalism. Critics argue that the so-called “keeping together federalism” actually splinters a country; it nudges political groups away from a shared national identity. This theory may explain what happened in Iraq: observers note that the adoption of a federal form increased existing sectarian divides. The recent events in Catalonia also show how strong regional autonomy can morph into demands for secession. And Yugoslavia, Czechoslovakia, and the Soviet Union were each federal states that ultimately crumbled.

The goal of this series of Essays is to explore the potential for federalism in the Middle East—including Israel. The authors here are hardly the first to entertain the idea of federalism for the Middle East. Yet, we believe that the topic continues to merit debate. What is more, our approach differs from prior efforts in that our analysis examines Israel alongside other Middle Eastern nations. We believe this is natural; like other countries in the region, Israel is characterized by deep sectarian divides and could benefit from federalism in numerous ways.

Introducing A Collection of Essays on Federalism in the Middle East

The first essay in this collection is Benjamin Wittes’s proposal for a federal Israel. Wittes’s proposal is not the first of its kind; yet, existing discussions on Israeli federalism have mainly focused on some sort of confederation between Israel and Palestine, in the vein of Bosnia and Herzegovina. Wittes takes these ideas one step further and proposes federalism not only as a potential mode of thinking about the Israeli-Palestinian conflict, but also as a potential solution to the growing religious divides within Israel proper.

Wittes’s essay is followed by a critique from Nathan Brown, an expert on constitutionalism in the Arab world. Brown welcomes Wittes’s proposal for pushing the debate in a “fresher and more realistic direction,” but believes it is ultimately unrealistic and insufficiently attuned to the views of Palestinians. Wittes’s and Brown’s essays on federalism in Israel are followed by a more normative piece by Chibli Mallat, which focuses on the Middle East as a whole. A scholar and politician in Lebanon, Mallat has long been a proponent of federalism in the region, including Israel and Palestine. In his essay, he describes how the “F-word” is loaded and often misunderstood in the Middle East, and—after addressing these sources of confusion—makes the case for a federal Middle East.

Zaid Al-Ali’s Essay also focuses on the region as a whole. A lawyer and constitutional law expert based in Tunisia, Al-Ali provides an important descriptive account of federalism’s trajectory in the wake of the Arab Spring. He observes that the momentum for federalism in the region appears to have passed. In Libya, the initial resolve to move to a federal system did not survive the 2017 constitutional drafting. In Yemen, the constitution-making process that had initially envisioned a federal state descended into conflict. In Iraq, which did adopt a federal system, federalism’s track record is dubious at best. Morocco, Tunisia, Egypt and Jordan opted for decentralization instead of federalism, but never fully fleshed out the details. Al-Ali’s message, then, is one of caution.

Lisa Blaydes, a comparativist who studies political institutions and state-building in the Middle East, also urges caution. Drawing on Iraq’s experience with federalism, Blaydes argues that the political arrangements adopted by Iraq after the 2003 American-led invasion increased the salience of sectarian and ethnic divides. She further urges that, if federalism were to be adopted in the region, it should not be imposed by international actors, but adopted through a community-driven process.

Some Conceptual Clarifications: Decentralization, Confederations, and Secession

Some core conceptual clarifications may be useful in reviewing these essays. While there are many competing definitions of federalism— and some scholars eschew the term federalism entirely—all agree that it entails some sharing power between the central government and subnational units, all of which are “coordinate and independent in their respective spheres.” More useful than settling on an exact definition or an exact label, however, is distinguishing federalism from related, non-federal forms of government.

First, federalism is different from decentralization. Both imply the delegation of powers to subnational units, but federalism involves constitutionally protecting these powers. That is, a constitution in a federal system delineates clearly between powers of subnational units and those of the center; any attempt to breach that barrier (from either side) is unconstitutional. By contrast, with decentralization, powers are delegated to subnational units at the central government’s discretion. Most crucially, this means that powers that have been delegated to subnational units can rolled back if the central government chooses. The distinction between federalism and decentralization is important for the Middle East. After the Arab Spring, Morocco, Tunisia, and Egypt each took steps towards decentralization without constitutionalizing regional powers. To appreciate the importance of this choice, consider a recent example from Israel. In Israel, some powers are decentralized de facto and municipalities have substantial powers in the area of religion, but the Knesset can reclaim these powers if it wishes. When the city of Tel Aviv recently decided to allow shops to open on the Sabbath, for example, the Knesset passed legislation forbidding it. Had Israel been a federal system, Tel Aviv’s actions might have been constitutionally protected.

Second, a federal state is different from a confederation. Federal representatives are directly elected; in a confederation, however, national representatives are chosen by subnational legislatures, not by direct election. Some of the existing proposals for a federal Israel-Palestine have focused on a confederation rather than a federation; by contrast, Benjamin Wittes’s proposal envisions a truly federal Israel.

Third, federalism is distinct from, and does not imply, secession. Chibli Mallat notes that federalism is often conflated with secession in the Middle East. But secession and federalism are conceptually distinct. Constitutions of federal systems often explicitly prohibit secession. (Ethiopia is a notable exception; its constitution includes a right to secession.) International law recognizes a right to regional autonomy (i.e., “internal” self-determination), but not to secession (i.e., “external” self-determination). If such an international right does exist, it is reserved for the small set of cases where regional groups are systematically repressed and denied representation entirely (e.g., Kosovo). If anything, then, the existence of a federal system with genuine regional autonomy for ethnic and religious groups weakens international legal claims for self-determination. At the same time, while federalism and secession are distinct as a legal matter, some worry that—as noted above—the adopting a federal system strengthens regional identities and increases secessionist claims. Recent events in Catalonia, South Sudan, and others suggest this worry is well-founded, although the empirical evidence is both mixed and scarce.

Further Design Choices Involved in Creating a Federal System

These distinctions merely hint at the range of constitutional design choices involved in creating a federal state. One important design question concerns how to best draw boundaries between subnational units. If the core point of federalism is to accommodate religious or ethnic identities, for example, then maybe boundaries should track these groups; India is a prime example of this approach. We can also imagine the opposite approach, whereby sub-national boundaries pack diverse groups together in the same region; this approach mitigates concerns that federalism could exacerbate sectarian conflict. Alternatively, it could also be possible to break up one dominant group but not others.

Another key question addresses what powers should be granted to the sub-national units. In countries in which religious divides motivate federalism, sub-national units should probably be given autonomy over religious matters. But do they get to raise their own taxes? Establish their own schools? If the regions are resource-rich, do they gain control over their own natural resources? Relatedly, federal systems must determine which level of government is granted enumerated powers and which level is granted plenary powers. In the United States, all powers not explicitly granted to the federal government belong to the states; yet many federal systems reverse this setup. In some cases, the constitutions enumerate the exact powers of both the central government and the subnational units. In these countries constitution-makers will have to address where the residual powers should lie for issues that arise after the federal constitution’s adoption and which the framers did not envision.

Finally, there is the question of who arbitrates conflicts between the central government and sub-national units. It is hard to imagine how a federation can function without an arbiter with jurisdiction over intra-state conflicts. This is less of a challenge for Israel, which has a strong and independent Supreme Court, than it is for countries that might establish a federal system without a tradition of judicial independence, like Myanmar.

Thus, creating a well-functioning federal system involves much more than a decision on whether to be federal or not. The devil is in the details: seemingly technical design choices can have profound consequences for how a federalist government operates. The Essays in this series certainly do not claim to be complete governance proposals. Instead, they present some initial thoughts and analysis by writers who have watched how federalism’s prospects have fared recently in the Middle East. Our goal is to take stock of federalism’s track record so far, with the hope of figuring out whether proposals for federalism should move forward—and if so, how to best facilitate them.

Mila Versteeg is the Class of 1941 Research Professor of Law and the Director of the Human Rights Program at the University of Virginia School of Law. She is also an Andrew Carnegie Fellow.

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