Year XL, 1998, Number 1 - Page 56
The Problems of Federalism in the Former Soviet Union *
SERGEI A. BELIAEV
Introduction.
Since the dissolution of the Soviet Union all Russian draft constitutions have resorted to the federal model,[1] and several other republics of the former USSR have quasi-federal entities on their territory which are inherited from the Soviet period.
Nevertheless, many experts still wonder how authentic and “comparable” post-soviet federalism is to the federal systems of other countries. The Russian thinker Alexander Solzhenitsyn states, for instance, that “Russia is not a federation”.[2] Other republics of the former USSR also face a whole series of problems with the de facto and the de jure status of the autonomous entities and minorities on their territory, problems which cast doubt on the validity of their state structure.
What then is the legal form and nature of the Russian Federation and of other Republics of the former USSR? What special features, defects and problems characterize federalism as conceived in the post-Soviet area, and what are its prospects?
1. The Problems of the Central Institutions.
Of all the States of the former USSR, only Russia has formally a federal structure.[3] All the other countries have central legislative, executive and judiciary institutions structured on unitary principles. Some of these states (Azerbaijan, Georgia, Moldova, Tajikistan, Uzbekistan, and Ukraine) include autonomous entities which are essentially national and territorial in nature, while others have no such entities (Armenia, Belarus, Kazakhstan, Kyrgyzstan and Turkmenistan).
The current structure of the Russian Federation is defined by the Constitution approved by the referendum of 12th December 1993, which came into force on 25th December 1993 after the publication of the referendum results. Article 1 of the Russian Constitution states that “the Russian Federation-Russia shall be a democratic federative law-based State with a republican form of government”. Further on, Article 5-3 stipulates: “The federative make-up of the Russian Federation shall be based on its state integrity, a uniform system of state authority, the separation of jurisdiction and powers between the bodies of state authority of the Russian Federation, and bodies of state authority of the members of the Russian Federation, and the equality and self-determination of the peoples within the Russian Federation”. Certain other provisions, and above all Chapter 3, explain the juridical conception of federalism in Russia.
The most important role in the Russian federal institutions is ascribed to the Head of State, the President, elected by secret ballot and direct, universal suffrage.
The President has very extensive powers, described in Articles 80-90, 117-2 and elsewhere in the Constitution, relating to the executive, legislative and judiciary power of the Federation. The Constitution states that the President is the “Head of State”, “the guarantor of the Constitution... and human and civil rights and freedoms” (Art. 80-1, 2). It is his duty to take measures to protect the sovereignty, independence and state integrity of the Federation.
The President ensures the coordination and interaction of the bodies of state power (Art. 80-2), and, in accordance with the Constitution and federal laws, determines guidelines for state foreign and domestic policy (Art. 80-3). He represents the Russian Federation domestically and in international relations (Art. 80-4).
These provisions have led Professor Patrice Gelard to declare that the quasi-regal powers of the Russian President are at once inspired by the American and French models and by the Russian and Soviet tradition. [4]
The Chairman of the Government is responsible to the President, who nominates him with the approval of the legislative power, the State Duma, and may remove him (Art. 83-a). At the same time, the Government is responsible to the State Duma, which may pronounce itself in favour of dissolving it (Art. 103-b).
According to the Constitution, the Federal Assembly is the “supreme representative and legislative body of the Russian Federation” (Art. 94). The composition of the Federal Assembly is typical of a federal state, being composed of two Chambers, the Federation Council and the State Duma (Art. 95-1).
The Federation Council is composed of two representatives from each member of the Federation (one from the executive, the other from the legislature of each state (Art. 95-2).
The Duma is composed of 450 members (Art. 95-3). Comparison of this number with that of the members of parliament of many other countries reveals a very low number of representatives in relation to the Russian population (around 150 million) — Ukraine has the same number of deputies for a third of the population; Estonia and Latvia have 101 and 100 deputies respectively for populations of 1.5 and 2.7 million.
The federal legislative procedure in Russia is complex. It involves both Chambers (Art. 104-107): not only the State Duma, but also the Federation Council must examine any bills relating to the federal budget, federal taxes and levies, finance, currency, credit and customs control, issue of money, ratification and denunciation of international treaties, the status and defence of the Federation borders, and war and peace (Art. 106).
The judicial systems of the countries of the former USSR, including the Russian Federation, are structured according to the principles obtaining in unitary states and are financed exclusively by the central budget. Whereas many federal states (the United States, Canada, Australia and the Federal Republic of Germany) have relatively decentralized and often elective judicial systems, the nomination of courts of first instance in Russia, as in many countries of the former USSR, is centralized. The Russian President nominates the judges of federal jurisdictions.
The situation is slightly different however as regards higher instances. The Russian Constitution of 25th December 1993 mentions three Courts of higher instance: the Constitutional Court, the Supreme Court and the Supreme Arbitration Court. The judges of these three Courts are appointed by the Federation Council on the President’s proposal (Art. 128-1) and the same procedure is followed for the Prosecutor-General of the Russian Federation (Art. 129-2). All the other prosecutors are appointed by the Prosecutor-General (Art. 129-4).
Thus, the members of the Federation have more chance of influencing the composition of the central judicial organs than of the bodies that are closer to them. For a really federal and democratic state it would be more logical to organize the judicial system in a diametrically opposed fashion, as regards the appointment of the justicial bodies, so that the central institutions are truly federal and subordinated only to the Federation, while the Courts and judges of ordinary instance are appointed or elected at the lowest possible level.
The prerogatives of the Presidents of various other states of the former USSR are comparable to those of the President of the Russian Federation. They are elected by direct universal suffrage and secret ballot, except in Latvia and Estonia (whose Presidents are elected by the legislature), and Lithuania (where the President may also, under certain conditions, be elected by an electoral college). Sometimes the Presidents are called Head of State (as in Belarus, Kazakhstan and the Ukraine), sometimes Head of State and Head of the Executive (Georgia and Turkmenistan). The Presidents of almost all the Republics of the former Soviet Union have the right to appoint and remove the heads of the executive following various procedures which provide for concerted action with the legislature. The Presidents of Armenia, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Turkmenistan, Uzbekistan and Ukraine have the right to dissolve parliament, with some reservations. The President of Latvia has the right to initiate the procedure of dissolving the Seyme (the legislative organ), which is carried out through a referendum (Art. 48). The Presidents of Estonia and Lithuania have the right to announce the organization of early legislative elections under certain conditions (Art. 58 and 97). The monocameral structure of legislative power is relatively widespread among the countries of the former USSR, with the exception of Kazakhstan, Belarus and Turkmenistan.
The President’s right of veto is interpreted variously in the different states. While the President of the Russian Federation has for example the right to temporarily veto all federal laws, with the exception of federal constitutional laws and amendments to the Constitution (Art. 108 and 136), the President of Azerbaijan has precisely the right to veto constitutional laws (Art. 123).
The reason normally given to explain the introduction of the federal system in Russia is the multinational nature of the Russian population (out of a total population of around 150 million, about 17 per cent are of non-Russian origin). From this point of view it is hard to understand why other countries of the former USSR, like Ukraine and Kazakhstan (with respective populations of different nationalities of 22 per cent and 60 per cent of the whole), reject any federal state model, maintaining a unitary structure. The proportion of the population of nationality different from the dominant one is also very high in two Baltic countries: Estonia and Latvia.
To evaluate the general character of the central Russian institutions, as of other countries of the former Soviet Union, it should be emphasised that these institutions succeed institutions of the Soviet period politically and juridically, a factor which has greatly influenced their nature. Indeed, the majority of states created after the disintegration of the Soviet Union have juridically a presidential regime of an authoritarian-bureaucratic nature. In the case of the Russian Federation, the concentration of powers in the hands of the Head of State ensures that this person must carry out a large number of supplementary tasks, and that therefore the destiny of federalism depends on the capacity of the personality invested with this office.
Any discussion of the application of the federal principle by the central institutions must first of all emphasize that federalism also has a democratic dimension. A French author, Louis Le Fur, stressed that in the federal state it is possible to oppose “the constitution of a tyrannical power by an individual or by a group”: “...Caesarism and the excesses of democracy are both impossible in a country where the direct action of central power is exercised on powerful public bodies as much as, and sometimes more than, on individuals”.[5] Let us examine more closely whether the constituent units of the states of the former Soviet Union are conceived as counterweights to antidemocratic or excessively populist tendencies.
2. The Problems of the Institutions of the Constituent Units of the State.
The Constitution of the Russian Federation mentions 89 federated units, of varying type: twenty-one constituent Republics, six Territories (Kray), forty-nine Regions (Oblast), two Cities of Federal Importance, one Autonomous Region, and ten Autonomous Areas (Okroug) (Art. 65). Various states of the former USSR have “autonomous” units on their territory: Georgia (Adsharia, while the autonomies of South Ossetia and of Abhasia are formally abolished and not mentioned in the Constitution of Georgia), Ukraine (the Crimea), Uzbekistan (the Republic of Karakalpakstan), Azerbaijan (Nagomo-Karabakh and Nakhichevan), Moldova (the Republic of Dnestr and Gagauzia-Gagauz Eri), and Tajikistan (Gomo-Badakhshan).[6]
Articles 11-2 and 77-1 of the Russian Constitution recognize the power of members of the Federation to organize their institutions without having to seek the approval of the central federal institutions. At the same time, article 77-1 states that their structure must be based on general principles determined by federal law.
It is significant that the President of the Federation has the right to dissolve the State Duma, but that under constitutional law none of the bodies of Russian central power has the authority to dissolve the legislative organs of the members of the Federation nor to remove the heads (Presidents, Governours, Prime Ministers, etc.) of these members if they are elected by the population.
All the members of the Federation have regimes which attribute an important role to the President or Head of State. The right to dissolve the legislative organ is provided for in at least three republics (Tyva, Ingushetia and Kalmykia). Only in Bashkortostan, Karelia and Sakha (Yacutia) is the legislature composed of two Chambers.
One of the major problems of Russia lies in how the Federation’s constitutional norms compare with those of the different subjects of the Federation, which to some extent show aspirations towards decentralization. Thus the Constitution of the Tatar Republic considers the Republic itself as “a sovereign state, a subject in international law in association with the Federation of Russia on the basis of the Treaty on the reciprocal delegation of competences and of objects of regulation’” (Art. 61), although the Constitution of the Russian Federation does not attribute the quality of sovereignty and the status of subjects in international relations to members of the Federation. Thus also, the Constitution of the Republic of Tyva, although it considers the Republic itself a member of the Federation, provides for the possibility of secession (Art. 1), which is not provided for in the Constitution of the Russian Federation.
Other republics, with the exception of the Republics of Ingushetia and Kalmykia, also claim sovereignty in their Constitutions, as in the case of the Republics of Buryatia (Art. 1), Kabardino-Balkar (Art. 4) and Komi (Art. 5).
After the proclamation of independence in 1993, the Constitution of the Chechen Republic, dating from March 1992, no longer mentions relations with the Russian Federation.[7] The Republic considers itself as “a sovereign democratic law-based state created as a result of the self-determination of the Chechen people”, in which the Chechen Constitution is supreme on its territory and its sovereignty is indivisible (Art. 1).
The Statutes (Ustav) of the Regions of the Federation of Russia contain a whole series of norms which contrast with the Federation Constitution.[8] The Statute of the Territory of Stavropol for example specifies privileges for the inhabitants of the region not granted to non-residents (Art. 13).
Although the division of competences between the Federation and the member states laid down in the Constitution of the Russian Federation is comparable to that laid down in other Constitutions of federal states,[9] it is less centralist. External competences are the exclusive province of the Federation (Art. 71). But joint competences include “the coordination of the international and external economic relations of the members of the Russian Federation and the fulfilment of the international treaties of the Russian Federation” (Art. 72).
As a result of this ambiguity, the Constitutions of many Republics and Regional Statutes interpret external competences (political and economic international relations) more broadly than does the Federal Constitution. Thus, according to the Constitution of the Republic of Tyva, it is the national legislative power which takes decisions regarding war and peace (Art. 63-11), whereas the Russian Federal Constitution attributes this power exclusively to the Federation (Art. 71j). Article 6 of the Constitution of the Chechenian Republic reserves for the Republic the right to join “international organizations, collective security systems and inter-state groupings”. The Region of Sverdlovsk attributes to itself the right to “initiate international relations and foreign trade relations independently” (Art. 13).
The solution to such discrepancies lies in the traditional federalist conception of the supremacy of federal law (Bundesrecht bricht Landesrecht). According to the Russian Constitution, federal law prevails over members’ laws in the case of conflict within Federation or joint Federation and members’ terms of reference (Art. 76-5), a principle which corresponds to the constitutional provisions of other federal states. The Constitutions of the Republic of Yakutia-Sakha and of the Ingushetian Republic, however, state that federal laws in the context of joint competences are valid on the territory of the Republic only after their ratification by the Chamber of Representatives (Art. 41-2 and 7-2). For the moment there is no uniform constitutional interpretation of the supremacy of Federal or of members’ legislation in the field of joint competences.
The Russian Constitution provides for certain procedures to settle differences. The President may resort to conciliation in cases of dispute between the Federal bodies and those of the various members of the Federation, as also between the bodies of the various members, or call in the appropriate Court (Art. 85-1 and Art. 125-2b), and may suspend any acts of the executive bodies of the Federation members which contradict the Constitution and federal law (Art. 85-2). In reality however, conflicts of a legal nature are ignored by the central institutions and the federal state bodies are very passive in the regulation of conflicts by constitutional means.
The statutes of autonomous entities within other countries of the former Soviet Union also pose a series of problems relating to legal conflicts. The Republic of Abhasia, previously considered part of Georgia, proclaimed its independence in 1992. Its Constitution, of 26th November 1994, states that Abhasia is “a democratic, sovereign law-based state, founded historically on the right of the people to free self-determination” (Art. 1). Article 3 states that it is a subject of international law. The status of the Republic and the competences of the President (Art. 53) allow the independent conduct of foreign policy. Georgia does not recognize this situation: its Constitution of 24th August 1995 reserves for itself the right to resolve the problem of the status of Abhasia “after the re-establishment of territorial integrity”.
The Republic of Crimea declared its sovereignty in the Constitution of 6th May 1992. This Constitution was abrogated by the Ukrainian legislative power — the Supreme Rada of Ukraine — and a new Constitution is currently under discussion. The Ukrainian Constitution of 28th June 1996 does not recognize the state sovereignty of the Crimean nor its right to undertake international relations: it is considered an part of Ukraine (Art. 134), and its powers are very limited (Art. 137-138). The legislative power of the Ukrainian Republic reserves for itself the right to dissolve the legislative bodies of the autonomous Republic of Crimea if the Ukrainian Constitutional Court should perceive a violation of the Constitution and of Ukrainian law (Art. 84-28). The Ukrainian law “On the Autonomous Republic of Crimea” of 17th March 1995 states that it is “an administrative and territorial autonomy within Ukraine” (Art. 1), and that its Constitution is only valid if approved by the Ukrainian Republican legislature (Art. 3). The Republic of Crimea engages in relations with other states and with international organizations “only in the sphere of the economy, ecology and culture” (Art. 9) and participates in the “formation and realization of Ukrainian foreign policy and foreign trade policy in questions which affect the interests of the autonomous Republic of Crimea” (Art 9).
The Constitution of Uzbekistan, of 8th December 1991, states that the sovereignty of the Republic of the Karakalpakstan is defended by Uzbekistan (Art. 70) through the formal recognition of the right of secession on the basis of a general referendum (Art. 74).
The Constitution of the Republic of Karakalpakstan of 9th April 1993 does not contradict that of Uzbekistan in any significant way. Article 17 establishes that “international scientific, cultural and commercial relations are conducted according to the legislation of the Republic of Uzbekistan and of Karakalpakstan.” The head of the national legislature of the Republic of Karakalpakstan is considered the highest official personality (Art. 80) and is responsible to the legislature. However, the Constitution also provides for a President of the Council of Ministers, who is presented to the Karakalpak legislature, with the agreement of the President of Uzbekistan.
The status of the Republic of Dnestr remains undefined in the Constitution of Moldova, although the former considers itself a sovereign state linked to Moldova by confederal relations. The Moldovan Constitution, 29th July 1994, simply establishes that the areas of the left bank of the Dnepr and the south of the Republic may enjoy “special forms and conditions of autonomy in accordance with the special status” (Art. 111).
Another autonomous entity on the territory of Moldova is Gagauzia. The law of the Moldovan Republic relating to the legal status of the Gagauzia (Gagauz-Eri) of 23rd December 1994 states that the latter is “an autonomous territorial formation with a special status based on the self-determination of the Gagauzians while belonging to the Republic of Moldova” (Art. 1-2). Areas whose population is more than 50 per cent Gagauzian may belong to Gagauzia on the basis of a referendum organized by the government of Moldova (Art. 5). The competences of Gagauzia extend essentially to questions of science, culture, training, development, sport, the economy, ecology and a few other fields. The regional legislature can participate “in the government of foreign and domestic policy of the Republic of Moldova in questions concerning the interests of Gagauzia” (Art. 3-b). The most important official in Gagauzia, elected by universal direct suffrage and secret ballot, is part of the Government of Moldova (Art. 14).
An autonomous entity belonging to the Republic of Azerbaijan is the autonomous Republic of Nakhichevan, which is considered “an autonomous state”. The most important official is the President of the regional legislative body, whose powers are limited to questions of local importance (Art. 169). On the other hand, another autonomous entity, the region of Nagorno-Karabakh, has not been de facto part of Azerbaijan since 1988, when it declared its exit from Azerbaijan and its entry into the republic of Armenia. On 10th October 1991 Nagorno-Karabakh declared itself a sovereign state with special relations with Armenia: it is mentioned neither in the Constitution of the Republic of Azerbaijan of 12th November 1995, nor in the Constitution of the Republic of Armenia of 5th July 1995.
Although constitutional procedures exist for the resolution of conflicts between the autonomous entities and the states they are part these are little used, since such conflicts are often political in nature.
Another problem is linked to the so-called asymmetry of constituent entities, both in Russia and in other states composed of autonomous entities, like Georgia, Ukraine, Moldova, Uzbekistan and Azerbaijan. In the case of the Russian Federation, on the one hand Article 5-4 of the Constitution affirms the equality of the members of the Federation “in their relations with federal bodies of state authority” — the principle of juridical equality of the federated units is one of the cardinal principles of federalism, a presupposition in the theory of the classical federal state.[10] On the other hand, the institutions of the members composing the Federation are very heterogeneous. The Republics often have Heads of State, parliaments or legislative assemblies, Ministers of Foreign Affairs, Ministers of Justice, Ministers of Internal Affairs and Constitutional Courts, while other members of the Federation are ruled by statutes which attribute to them more limited competences. In the Republics there is genuine republican citizenship, which is not provided for in other members of the Federation, and hence more powers than the latter.
The inequality of the members of the Russian Federation is accentuated by the practice of concluding treaties between federal institutions and the executives of members of the Federation concerning the division of competences, treaties which modify or supplement the constitutional norms in this area, establishing differences between the members of the Federation as to their powers,[11] an inequality reinforced by their differences as to human, natural and economic resources.
This asymmetry is equally a feature of the constitutional status of the autonomous entities in other republics of the former Soviet Union, where both the minority and the majority of the populations feel themselves disadvantaged by their special status. A juridical solution to this asymmetry has long been advocated by Grabar, who proposed linking rights to obligations for each entity, so that more rights correspond to more obligations and vice versa.[12] Equality would thus be realized through the concept of equity.
Further problems arise from the general geographical, ethnic and demographic context. Some large ethnic groups (Germans, Poles) have no corresponding federated entity in Russia. In the territory of the same state populations of various ethnic origin live in a dispersed way.
Border changes are a delicate procedural matter, ill-regulated by the Russian Constitution. Such changes need to be introduced by truly democratic means, with the broadest possible participation of the population, yet the Republican bodies of authority are far from being sufficiently representative and democratic to tackle such problems.
On the whole (in 15 republics out of 21), “non-indigenous” ethnic groups in the Republics of the Russian Federation often represent a considerable portion or the majority of the total population, but they do not have adequate influence: the authorities of the federated members are in most cases controlled by the indigenous community. As Solzhenitsyn has said, “in many regions the power of the communists has been replaced by the power of the minorities, so that one cannot speak of a democratic system”.[13]
Solutions to these problems can be found in internal federalism. Republics like Tatarstan (total population 3.6 million, of whom 1.7 million are Tatars and 1.5 million Russians), Bashkortostan (total population 3.9 million, of whom 0.8 million are Bashkirs, 1.5 million Russians, and 1.1 million Tatars), Daghestan (total population 1.8 million, of whom 0.5 million are Avars, 0.3 million Dargins, 0.2 million Kalmyks and 0.2 million Russians), are comparable on a geographic, demographic and ethnic level to countries like Austria, Belgium and Switzerland, and federal reorganization is therefore conceivable. However, the leading groups in the various Republics are opposed to the introduction of federal sub-systems in their territories, preferring to support the establishment of unitary systems “with presidential regimes”. The decision of the Constitutional Court “On the territory of Altai” of 18th January 1996[14] indicates a federal solution to relations between the executives and the legislatures within the members of the Federation, without however specifying the structure and characteristics proper to a decentralized system (intra-state entities, two levels of competence, bicameral legislature).
The Russian jurist N. Alexeyev states that in his conception of the ideal state federalism is necessary and inevitable, because local territorial interests must be taken into consideration: “Public bodies of a state of this type must not have a unitary hierarchical structure, but must represent a plurality of systems which produces a hierarchical image of the entirety of the state in all its components”.[15] The perfect state must, in his view, be “the state of states”, or the “world-state”.
3. The Problems of Local Institutions.
The aspirations of the population, both in the Russian Federation and in other countries of the former USSR, can to a large extent be satisfied by the authorities of the third level — that of local popular self-government. Let us examine more closely the role of the bodies of self-government.
The organization of local self-government is recognized in Russia as “independent within the limits of its powers” (Art. 12). The bodies of local self-government are not considered by Russian constitutional law as being part of the system of the bodies of state authority (Art. 12), and this limits the application of the principle of subsidiarity in relations between Federation and federated members. Some experts maintain that the constitutional norm on this question needs to be changed.[16] One of the defects of local self-government in Russia is that the “Law on the principles of self-government” of 12th August 1995[17] does not attribute sufficient powers to the local bodies in the financial and fiscal domains, police and justice, immigration and residence, border changes and others.
There are various constitutional interpretations of self-government among the members of the Federation: some (the Republics of Bashkortostan, Sakha-Yakutia and Komi, the Territory of Khabarovsk and Regions of Sverdlovsk and Amur) share the idea that self-government is a continuation of public authority, whereas the Chechen Republic for example keeps it distinct from the bodies of the state. Several members of the Federation currently stipulate that the leaders of local self-government are appointed by higher state bodies.
After the dissolution of the Soviets in 1993 there were no representative administrative bodies of local self-government in many members of the Russian Federation, and their functions were discharged by local executives appointed by the executives of the Federation members. Only in 1996-7 did some municipalities hold elections and reorganize their administrations. And despite size of their population, the federal cities, Moscow (about 10 million inhabitants) and St Petersburg (5million) — which, under the Constitution of 12th December 1993, are members of the Federation — will not have elected self-government till 1998. Alexandr Solzhenitsyn writes that “the joint resistance of the presidential apparatus, the government, the State Duma, the political party leaders and the majority of provincial governors has so far impeded the creation of organisms of local self-government...”[18]
The leading groups in other countries of the former Soviet Union also ignore this problem, and many constitutions either mention it briefly or not at all. The Constitution of the Republic of Kazakhstan, 30th August 1995, distinguishes between “local management of the state” and self-government. In the former case the Constitution re-establishes traditional Kazakh bodies (maskhilates), which are identical throughout the territory, including the regions with populations of different ethnic origin, and which are part of “the unified system of the executive bodies of the Republic of Kazakhstan” (Art. 87). The Constitution of Turkmenistan, 27th December 1995, also distinguishes between local executive power and local self-government, while that of the Republic of Kyrgyzstan of 10th February 1996 only mentions “the local administration of the state” (Art. 76-77). The Constitutions of Georgia and Latvia contain no provisions relating to self-government.
Local self-government can become an effective means to involve the citizens more actively in the processes of federalization (“municipal federalism”) by giving them concrete power, yet its bodies are not taken seriously and at times are even considered a danger for the balance of powers with regard to other levels. The fact that the importance of self-government structures is undervalued as a means of solving the problems of multi-ethnic societies is one of the causes of tensions between the various ethnic groups at the level of administrative bodies and in their reciprocal relations.
4. The Prospects of Federalism in the Former Soviet Union.
Federal Constitutions do not per se provide final and absolute solutions, and, like federal institutions, can be evaluated only in the context of the concrete development of society.
The Australian expert Saunders emphasizes that no “correct” model or “pre-established characteristics” of federalism exist.[19] Even the classical authors of federalism observed that comparison between federal and unitary states, on the one hand, and between federations and confederations on the other, may reveal many passing similarities.[20] Professor Fleiner identifies an organic link between unitary and federal elements.[21] Pre-revolutionary Russian juridical science saw the difference between the autonomy of the provinces and the participation of members of the Federation as relative.[22]
The problems of federalism in the post-Soviet area coincide with those on the international scene. The post-modern concept of the federal State is in the process of being elaborated by constitutional experts and covers a new interpretation of sovereignty, of the nation, of constitutionality, of the democratic organization of how institutions function. The current view of federalism is influenced by participation in international or supranational organizations and by the impact of globalization on state structure, which implies a certain limitation of state sovereignty in the interests of humanity. Fleiner calls states “agents of the common interests of humanity”.[23]
The tendency to growing affirmation of the bodies of self-government is manifest in several federal countries today, such as Germany and India, and in the provinces of the Republic of South Africa;[24] while back at the beginning of the twentieth century, self-government rather than national autonomy was being promoted by Russian jurists as the preferred solution to interethnic problems.[25] The Russian historical experience of the zemstvo, and traditional forms of self-government in other countries of the former Soviet Union, can be utilized to resolve current problems. Past Russian theories of state structure should also be re-examined, such as that of M. Speransky, or those which underpinned the reforms under Alexander II, or D. K. Shilov’s concept of the state of zemstvo, and others which view the structure of self-government as an integral part of the bodies of power.
Whereas one of the rare successful reforms in Russia — the reform of the institutional system under Alexander II — was promoted from the bottom up (independent Courts and judges, local, regional and urban self-government),[26] first the Soviet Union and then the Russian Federation and other states of the former Soviet Union have been subject to incessant attempts to superficially imitate western institutions particularly at a higher level of society, not at the level of basic democracy.
An important phenomenon closely linked to federalism is the diffusion of common values at the international level. Asserting the multinational community’s need for a “natural psychological unit”, N. Alexeyev maintains that, to build a perfect state, there has to be a “multinational unit based on a supranational homogeneous culture”.[27] The federal state, like every other kind of state, must therefore have an ethical foundation which permeates state institutions and neutralizes the nationalist and fundamentalist tendencies existing in various parts of the world. Characteristic of the ethics of the nascent community is the ability to transcend and encompass nation, state and denomination.
Across the world these features are found in the evolution of regional economic communities, especially in the European Union. Similar quasi-federal experiments in the post-Soviet area (the Community of Independent States, the Economic Union, the Union of Belarus and Russia, the Central Asian common market, the Baltic common market) have so far been uncertain for the same reasons as attempts at federal reform within the states are uncertain: the bureaucratic-authoritarian nature of the state systems in the countries of the former Soviet Union.
The contemporary evolution of federalism is moving towards a tendency to “redistribution” of classic federal powers in favour of regional (with a view to universal) multinational institutions, on the one hand, and local institutions, on the other. Federalism in the post-Soviet area will be successful if based on universalist tendencies common to all the states and on the organic needs of the most representative groups of the various countries.
Conclusion.
The constitutions of the states of the former Soviet Union seem based on a compromise between the supporters of the unitary state and the interests of the component units of the states. The search for equilibrium between unity and plurality coincides with the classical view of federalism as a synthesis between particularism and collectivity.[28] This approach of compromise has the function of avoiding the two extreme solutions and of finding a convenient solution.
One may however wonder why in practice a proper balance has not yet been found, in Russia and in the other countries of the former USSR, between the central institutions, to whom the constitutions attribute major importance, and the component entities of the states. Observation of the actual situation today rather shows the impotence of the state systems vis-à-vis decentralizing tendencies: the Russian central institutions do not control the situation which has been created in Chechenia and in some other regions, just as Georgia does not control the events in Abhasia and South Ossetia, nor Moldova in the Republic of Dnestr, nor Azerbaijan in Nagorno-Karabakh. Some experts believe that in Russia tendencies toward disintegration are prevailing over the process of integration.[29]
The reasons for this phenomenon have in part already been explained: the concentration of powers in the hands of the central institutions, the opposition between the central bodies of the state and the bodies of the component entities, ignorance of democratic self-government and the nationalist and denominational distortions. These tendencies in the post-Soviet area are aggravated by the process of economic decentralization, in which many economic powers are in the hands of public authorities often fighting amongst themselves for the distribution of industrial infrastructure and natural resources.
The result of the permanent institutional crisis is the incapacity to respond to the needs of social and political life. The inefficiency of the constitutional modifications resides in the gap between reality and constitutional policy, as well as in the irresponsibility of the leading groups of the bureaucracy. Constitutional policy, like other policies, must, on the contrary, be based on the organic needs of social evolution.
* This heading includes contributions which the editorial board believes readers will find interesting, but which do not necessarily reflect the board’s views.
[1] Sergei A. Beliaev, “Constitutional Debates in Russia in 1992-1993”, in Review of Central and East European Law, 1994, n. 3, pp. 305-19.
[2] Alexandr Solzhenitsyn, “Das russische Volk steht am Abgrund”., in Fokus, 1996, n. 42, p. 108.
[3] The references to the constitutions and to the other laws in force in the countries of the former Soviet Union are based on the texts contained in Novye Konstitutzii stran SNG i Baltii, 2nd ed., Manuskript, Moscow, 1997.
[4] Patrice Gelard, “L’actualité constitutionnelle en Russie”, in La revue française de droit constitutionnel, n. 17, 1994, p. 191.
[5] Louis Le Fur, Etat fédéral et confédération d’Etats, Paris, Marchal et Billard, 1896, p.334.
[6] Further references to the constitutions of the members of the Russian Federation are based on the following publication: Konstitutzii Respublik v sostave Rossiyskoy Federatsii, Vypusk II, Izvestya, Moscow, 1996.
[8] Ustavy krayev, oblastey, gorodov federalnogo znatcheniya, avtonomnoy oblasti, avtonomnykh okrugov Rossoyskoy Federatsii, Vypusk I, Izvestya, Moscow, 1995.
[9] Michael Botha, Die Kompetenz struktur des modernen Bundesstaates in vergleichender Sicht, Berlin, Berlin Verlag, 1974; Luigi Di Marzo, Component Units of Federal States and International Agreements, Rockville, Alphen aan den Rijn, 1980; Christian Starck, “Les relations extérieures des Etats fédérés et des communes”, in Territorial Distribution of Powers in Europe, Volume II, Freiburg, Institut du Federalisme, 1992, pp. 189-213.
[10] Fritz Fleiner, “Unitarismus und Föderalismus in der Schweiz und in der Vereinigten Staaten von Amerika”, in Ausgewählte Schriften und Reden, Zurich, Poligraphischer Verlag AG, 1924, p. 252.
[11] Sergei A. Beliaev, “Die Neuen Rechtsgrundlagen der Beziehungen zwischen der Russischen Föderation und der Republik Tatarstan”, in Osteuropa Recht, 1995, n. 2, pp. 121-33.
[12] Veniamin E. Grabar, “Natchalo ravenstva gosudarstv v sovremennom meshdunarodnom prave”, in Izvestya Ministerstva inostrannykh del, 1912, Kn. 1, p. 230.
[13] Alexandr Solzhenitsyn, Op. cit., p. 108.
[15] Nikolay N. Alexeyev, Teorya gosudarstva, Prague, Izdatelstvo Eraziytsev, 1931, p. 177.
[16] “Razvitiye federativnykh otnocheniy v Rossii: problemy I perspektivy”, in Federalsm, 1997, n. 1, p. 62.
[18] Alexandr Solzhenitsyn, “La pré-agonie de la Russie”, in Le Monde, 27th November 1996.
[19] Cheryl Saunders, “Constitutional Arrangements of Federal Systems”, in Publius, Spring 1995, p. 78.
[20] Georg Jellinek, Allgemeine Staatslehre, Verlag von O. Höring, Berlin, 1900, p. 707; Louis Le Fur, op. cit., pp. 714-717; Charles Rousseau, Droit International Public, Volume II, Paris, Sirey, 1974, p. 139.
[21] Fritz Fleiner, op. cit., p. 252.
[22] Alexandr Korf, Federalism, 2nd ed., Petrograd, 1917, pp. 94-99.
[23] Thomas Fleiner, “State-Nation-Nationalities-Minorities. New Nation-State Concept for a European Constitution”, in Towards a European Constitution, Freiburg, Institute of Federalism, 1996, p. 23.
[24] The Constitution of the Republic of South Africa, 1996. Act J08 of 1996, Pretoria, 1996, pp. 60-80.
[25] Paul Vinogradoff, Itogi XIX veka, Moscow, 1902, p. 258; Alexandr Yatschenko, Teorya federalisma, Yuryev, 1912, pp. 390-396.
[26] Anatole Leroy-Beaulieu, L’Empire des Tsars et les Russes, Paris, 1990, p. 205.
[27] Nikolay N. Alexeyev, op. cit., 1932, p. 165.
[28] Alexandr Yatschenko, op. cit., 1912, pp. 2-35.
[29] Razvitiye federativnykh otnocheniy v Rossii: problemy i perspektivy, in Federalsm, 1997, n. 1, p. 79.
