1 Purpose of the Editor’s Volume
In traditional federal theories, symmetry in the institutional design of the federation is considered an integrative factor. Implicit in these theories is the idea that the component units of a federation have equal relationships with each other and with the federal authority. 1 While in reality, all federal systems show asymmetrical features, 2 the degree of symmetry and asymmetry is considered an indicator of the degree of harmony or conflict within each system. 3 One possible explanation for this is that asymmetrical solutions are considered an anomaly. 4 Constitutional asymmetry , it is argued, risks to undermine equality , transparency and cohesion 5 and threatens the long-term sustainability of a federal system. 6 Symmetrisation processes are therefore encouraged to secure the stability of the political system.
At the same time, scholars have linked asymmetry with multinational federalism, 7 presenting federalism and asymmetry as forms of ethnical conflict management. 8 While different factors explain constitutional asymmetry and although asymmetric arrangements can also be observed in non-multinational federations, the link between multinationalism and constitutional asymmetry is of specific interest, for three reasons. First, it has been held that national and linguistic differences seem to generate more constitutional asymmetries compared to other factors. 9 The power-sharing arrangements that are introduced to manage multinational conflicts, tend to focus on those groups that threaten to undermine the state’s integrity and stability , thereby creating the non-advantaged regions as a third player. 10 Second, the accommodation of diversity , as pursued by federalism, can both be conditional for the stability of a state and contain the seeds for instability. 11 This paradox is even more pressing in multinational states, as multinationalism has been identified as a factor of instability of federal states. This is because stability in these systems is founded on mutual relationships between a complex set of actors and processes. 12 Third, constitutional asymmetry has special relevance as part of identity politics, because identity questions such as language, religion or ethnicity are in principle non-negotiable issues. 13 However, if constitutional asymmetry turns out to be an inherent part of multinational systems, the emphasis that traditional federal theory puts on symmetry and symmetrisation process, is ill-suited for a growing if not the major part 14 of contemporary federal and quasi-federal systems. 15
Yet, literature on constitutional asymmetry in general and in multinational political systems in particular, is scarce. 16 Asymmetry has been discussed primarily by political scientists, mostly interested in political asymmetries. For legal scholars, however, constitutional asymmetry is of particular interest as a type of constitutional engineering. This volume’s purpose is therefore to offer a systematic comparative study of constitutional asymmetry in multinational states. Its purpose is to study the correlation between constitutional asymmetry and multinationalism in multi-tiered systems through a comparative study based on country reports. It serves as a building stone for follow-up research to identify differences in constitutional asymmetries between multinational and non-multinational systems, and to examine from which point on constitutional asymmetry is a threat to the stability of the political system. 17
2 Definitions and Terminology
Before putting forward the hypotheses that structure the present volume, we define five key concepts for our study and choose, for the sake of uniformity, the terminology used throughout the book. These concepts are: (1) multinationalism , (2) multi-tiered states , (3) sub-national entities, (4) political and constitutional asymmetry and (5) strong and weak asymmetry.
2.1 Multinationalism
Following Stepan, multinational systems in this book are defined as systems in which significant groups voice important political autonomy claims for territorial entities based on linguistic, religious, cultural or ethnic identities. 18 Hence, for a system to be identified as multinational, three criteria must be fulfilled: (1) the system consists of one or more groups that distinguish themselves on the basis of identity; (2) they are territory-based; and (3) they claim important autonomy, or even threaten separation. Multinational states that incorporate national groups—for example after migration or occupation—do not qualify if these groups are not situated within the same territory (or territories) and do not claim political autonomy on the basis of their identity. On the other hand, it suffices if some but not all national groups are territory embedded. The country reports in this edited volume give ample illustrations of the variety in this respect. For example, in Ethiopia, more than 80 ethnic groups can be discerned, but only five are territory embedded. In China , national and ethnic groups can be located within a specific sub-national entity, but only the Tibetans constitute the majority population within their entity. In Belgium, all linguistic communities have their own sub-national entity, but one sub-national entity is an (unbalanced) mixture of two linguistic communities .
This definition explains why Switzerland is not included in our selection. In literature, Switzerland is sometimes categorized as a multilingual but mono-national state based on its common national identity, whereas others refer to it as a multinational state because of its linguistic heterogeneity. 19 Stepan argues against labeling Switzerland a multinational state because Protestant and Catholic differences are linguistically cross-cutting, power-sharing is not built around a single language, and no significant political party advocates secession. 20
2.2 Multi-tiered States
We are interested in how constitutional asymmetry accommodates diversity within one state (or state-like organizations) in multinational political systems. This includes states that fall outside the traditional conception of federal states, 21 to include all systems with multiple tiers of government, combining the central level with sub-national entities with important public policy powers. 22 While states such as Indonesia, Italy and the United Kingdom do not regard themselves as federal, they do experience devolution processes that are borne out of tensions between autonomy claims by territorial sub-entities on the one hand, and the need for integrity of the entire state on the other. This way, they share with traditional federal systems the idea of diversity within unity as a constitutional and institutional device. 23
For our selection, we applied two limitations. First, we are only interested in multi-tiered systems with sub-national entities that (also) have statute-making powers, as this distinguishes them from systems of mere administrative decentralisation, where sub-national entities act as executive agents of the central authority. 24 Second, we excluded peripheral constituent units, i.e. unitary states that incorporate only one sub-national entity with a different status, 25 as well as dependencies, overseas territories and sub-national entities that are disputed territories, because they do not affect the operation of the federal system in a notable way. 26 Iraq seems an exception at first sight, as only the Kurdistan Region is an autonomous sub-national entity. However, Kurdistan is not a merely peripheral entity, but at the heart of political controversy in Iraq . Also, the constitution allows for the establishment of other autonomous regions . Finally, the governorates have substantial administrative and financial autonomy.
2.3 Sub-national Entities
Multi-tiered legal systems use...