Comments on the draft agreement on

Federalisation of the Republic of Moldova

(text of July 2002)


Bruno Coppieters and Michael Emerson[i]

(8 August 2002)




At a meeting in Kiev on 1-3 July 2002, the mediators for the Moldovan-Transniestria conflict proposed, on the initiative of the OSCE, a draft agreement on the constitutional system that would regulate the distribution of competencies between Chisinau and Tiraspol. This draft agreement defines the Republic of Moldova as a « federal state ». The implementation of the agreement would be monitored and ultimately guaranteed by the Russian Federation, Ukraine and the OSCE.[ii]


It is to be greatly welcomed that the interested parties have reached the stage of negotiation over a full text to finally resolve a conflict in a constitutionally ordered way. It is also notable, and highly positive, that this process is now being made open and transparent. This improves the chances that the outcome will be viewed as democratically legitimate by the population, which is an important condition for its long-term viability. Under the present circumstances, the choice of a federal solution should also be welcomed as the best option for a multi-national state such as Moldova. Furthermore, the federalization of Moldova could lead to a positive spillover effect in the frozen conflicts of the southern Caucasus.


To what degree is the proposed constitutional arrangement likely to solve conflicts of competencies between the federal government and the government of Transdniestria and to provide for federal stability? This question cannot yet be answered positively, since there are some weaknesses in the draft agreement which need further attention. These are :


1.      It is not clear how many subjects of the federation there would be : two (with just Transniestria), three (with Gagauzia), or more ? The answer makes a difference to what kind of federation Moldova should become, and notably symmetric or asymmetric.


2.      There is an excessively long list of joint competencies, which makes future conflicts over competencies all too likely. Working with exclusive competencies would be a better choice.


3.      According to the draft agreement, conflicts are primarily due to be settled by the authority of the federal level. Such an hierarchical principle is inappropriate to resolve conflicts between levels of governance that represent different national communities.


4.      The role of the Presidency needs further consideration, the present proposal being overloaded with both executive and arbitrating responsibilities.


5.      There is room for considering electoral methods for the parliament and presidency that would favour candidates that can mobilise support among the different ethnic communities.


6.      There are no political and juridical mechanisms (such as a constitutional court) for conflict mediation or resolution in case of disputes. Existing ethno-federations provides for a whole range of constitutional mecanisms appropriate to preserve federal stability.


7.      There is no mechanism for constitutional revision.


8.      The list of ‘guarantees’ is excessively long and implausible in some cases.


9.      The mechanism for how the three guarantors would work, and the nature of their authority needs to be specified. In particular there are some interesting possibilities for internalising the role of the guarantor and/or arbitrator, based on experiences of the OSCE and Council of Europe elsewhere. 


Choice of a federal system

Federalism is dealing with the division of power between levels of governance. In a federation, the fields of government are vertically divided between a federal level and at least two federated entities. The federal and the federated level are drawing their competencies directly from the constitution.[iii] In this respect, a federation differs from a confederation, where the division of power is horizontally organised on the basis of the sovereignty of the constituent parts, and it also differs from a regionalised or decentralised system, where the division of power is only weakly developed. In a regionalised or decentralised state, the distribution of competencies may be unilaterally modified by the central level, without any kind of involvement of the regions. The mediators to the conflict on Transdniestria have clearly opted for a federation. According to Art. 1 of the draft constitution, the « Republic of Moldova is a democratic, federal State ». This means that the division of power has to be regulated by constitutional procedures.


Ethno-federations and territorial federations

The building-blocks of ethno-federations are constituted by national communities, as a way to acknowledge the separate identity of various national identities in a single state.[iv] Such an arrangement differs from a territorial arrangement.[v] A territorial type of federation does not take minority and other collective rights into account in drawing the borders between federated entities or in the distribution of competencies. The draft agreement includes ethno-federal principles in the regulation of the use of language. According to Art. 14, a distinction is made between Moldovan as a « national language » and the languages of the state-territorial entities, that may be used on their territory as « official languages ».  However, the number of federated entities– described as ‘state-territorial entities’ in the draft agreement – is not specified. It clearly includes Transdniestria. But would it also make special provision for Gagauzia, which presently has an autonomy arrangement? And for Taraclia county, with its Bulgarian population?


This lack of specification leaves the door open in theory to a mixed type of federation. The Moldovan federation might in this case include some federated units based on the principle of ethnicity, and some federated units based on the territorial principle, whose boundaries are not linked to ethnicity. The choice over the nature of the federated entities is closely linked to the choice over a symmetric or asymmetric  division of competencies. A symmetric distribution of powers (i.e. all federated entities have the same powers) tends to prevail in territorial federations such as Germany or the US. Symmetry may also exist in ethno-federations, as possibly in Cyprus if the current negotiations over a settlement succeed. In mixed federations, an asymmetric distribution of competencies is more common. In the case of Spain, for instance, Catalonia and the Basque Country have different competencies, in accordance with their particular historical traditions and political needs. For this reason also, the Georgian government has envisaged an asymmetric distribution of competencies in a future federal state that would include Adjaria, Abkhazia and South Ossetia. Contrary to asymmetric federal designs symmetric types of power distribution are far more rigid in handling specific claims of national minorities.


The number of federated entities is also an important factor affecting the choice of symmetry versus asymmetry. According to comparative federal theory, a larger number of federated entities permits a more complex game of political alliances in a federation, which should favour compromises and stability. In the case of Moldova, where the largest national community will be dominant in any case, a multiplication of federal actors would not necessarily facilitate the integration of national minorities into the federation. This is particularly the case when the federal constitution prescribes a symmetric distribution of power. Symmetry may lead to more risks of conflict if the number of federated entities representing one single nationality increases. Moreover, it remains to be seen to what extent the limited size and population of Moldova would permit such a multiplication of federal entities. If the federated entities only included Transdniestria and Gagauzia and not other territorial regions of Moldova, the risk that a symmetric system would be de-stabilising would be lower. Nonetheless, even if the number of federated entities were kept low, it seems preferable to choose the more flexible type of an asymmetric federation.


Excessive mixed competencies

A serious risk for future conflicts between the Republic of Moldova and Transdniestria lies in the very large number of mixed competencies given to the federal and federated levels. These include (according to Article 16) the protection of individual rights; issues of property; management of land, earth, water, and other natural resources; education, science, culture and sports; social security; and principles of taxation.[vi] It will be difficult for the legislators at the various levels of government and for the administrations to delimit the scope of their own powers. Conflicts of competencies will unavoidably be politicised and easily escalate, threatening the unity of the federation.


The draft agreement provides that in case of conflicts between legislative levels the primacy of the federal level should be respected (article 20). The implementation of such a hierarchical principle is not able, however, to solve political conflicts in the long term. Such a procedure will not be perceived by national minorities in Moldova as corresponding to democratic and federal principles, but as the expression of hierarchical relations between nations, where the majority principle dominates the right to internal self-determination of minority groups. This will undermine the legitimacy of a federal solution to the ethnic divisions, strengthen the secessionist potential in Transdniestria, and necessitate the permanent involvement of the external guarantors in the political decision-making on all levels of the federation.


It would be a far wiser option to reduce the number of shared competencies (and framework competencies) to the absolutely necessary minimum, and to make use instead of a model of distribution of powers based on exclusive competencies for each level of governance. As each level is drawing its powers directly from the constitution, such an option makes it possible to minimalize the hierarchical principle between national communities. It also minimalizes the points of friction between governments, parliaments and administrations. And where competencies have to be shared, they can to a certain extent be subdivided in narrower sub-competencies and allocated exclusively to one level of government (see CEPS’ recent proposals for Cyprus for a detailed treatment of these questions of competences[vii]).


Role of the Presidency

The presidential institution, as designed by the draft proposal (art. 23 to 25) is a further factor that may make the integration of the various entities composing the federation more difficult. According to the draft proposal, the President, as Head of State, determines the main directions of domestic and foreign policies. He has to be elected at a joint session of both Chambers of the Parliament. He has a determining role in utilizing “agreed procedures for resolving disagreements between organs of State authority of the Republic of Moldova and organs of State authority of the state-territorial entities” (Art. 24). In case no agreement is achieved, he may forward the case to “an appropriate court”. The composition of this court is not further specified.


In the case of the ethno-federal arrangements to be found in Spain, Belgium or Bosnia, stability is partly achieved by severe limitations on the role of the Head of State. This is done by adopting the principles of a constitutional monarchy and of a parliamentary democracy (Spain and Belgium), or of a rotating Presidency (Bosnia). According to the draft proposal for Moldova, to the contrary, the President has two contradictory roles. He is both the dominating figure in the executive branch and he has an arbitrating role, in case a conflict would arise between the various levels of government. This means that the President would be the main federal actor in all conflicts arising with federated states and its main arbitrator.


It may be necessary to redefine the role of the Presidency, first of all by increasing the role of other state institutions in mediating and resolving political disputes. While there is no agreement between scholars to which extent the conflict in Transdniestria may be considered as an ethnic conflict,[viii] it is obvious that the constitution should give a maximum number of guarantees that the Presidency is not perceived as defending the sole interests of one ethnic community. Specific institutional provisions should prescribe a neutral role of the Head of State in ethnic disputes. The draft agreement for Moldova does not provide for such guarantees.


Electoral methods

The election of the president at a joint session of both Chambers of the Parliament does not exclude the election of a political figure that might not have a political interest in playing a moderating role in ethnic conflicts. There are no provisions in this draft either for electoral techniques that would favor the election of moderate figures in both chambers of Parliament. ‘Moderate’ political behaviour on the part of parliamentarians and the President may be achieved, for instance, by electoral techniques that favour candidates who can attract a minimum number of votes among the different national communities.[ix]


Provisions for revision

In a federation, constitutional changes in the distribution of power cannot be made without the participation of both levels of governance or of the various national communities that constitute the federation. The draft agreement provides for  guarantees for the preservation of the agreed distribution of power. According to Art. 8, the distribution of competencies in the federation is regulated by « the present Agreement, the Constitution and the laws of the Republic of Moldova, other agreements on delimitation of competencies and powers». No provisions are made, however, concerning the procedures to be followed in case the distribution of competencies has to be changed. In this respect, it will be difficult to correct in-built defects of the constitutional set-up in a later stage. This is no good omen for stability, taking into consideration that other ethno-federations, such as Belgium or Spain, seem to require recurrent constitutional reforms in order to adapt the institutional framework to changing realities and compromise agreements.


Constitutional court

The present draft agreement does not provide for appropriate political and juridical institutions that would be able to manage conflicts of competencies between the levels of the federation. A constitutional court is a good alternative, assuming it is able to solve the problem of the ethnic affiliation of the judges, which might otherwise weaken the legitimacy of its rulings.[x] A solution has been found for Bosnia and Herzegovina, where some of the judges of the constitutional court are appointed by the President of the European Court of Human Rights (which is linked to the Council of Europe).


External Guarantors

The role of the three guarantors, the Russian Federation, Ukraine and the OSCE, and the nature of the guarantees, need further specification. We have no comment ourselves on who the guarantors should be, since this would be the political choice of the principal parties. However their role certainly requires clarification in several respects.


First, it needs to be clarifed whether the three guarantors are authorised to act individually or only jointly. We may mention the example of Cyprus, where Greece, Turkey and the United Kingdom are guarantors. In this case the procedures to guarantee domestic peace and the rules of intervention were insufficiently specified in 1960.[xi] This was one of the factors explaining the civil war and the ensuing Turkish intervention, leading to the division of the island. The same defect should not be repeated in Moldova, where it still has to be made clear which model, of individual or joint action, applies.


Second, with respect to the OSCE’s role it further needs to be clear how the OSCE would be authorised to act. Normally the OSCE acts by consensus. Does this mean that the OSCE could only take position upon the unanimous agreement of all its member states? If the guarantor role could be performed by any one of the three guarantors acting alone, would this mean that either Russia or Ukraine could intervene contrary to the position of the OSCE (i.e. one or more of its member states)?


Third, it is unclear what form of action the guarantors might take. For the extensive guarantees set out in Article 36.I, II, III and IV one would expect mechanisms of implementation to be set out clearly. The terms guarantee and guarantor are very strong in the legal context of treaties. Looking at the content of these guarantees one could imagine that there would have to be a high representative, or a troika of three high representatives, entrusted with these tasks. Would the high representative(s) be granted powers of decision?


Article 34 says that all disagreements shall be settled by exclusively peaceful means. Could this mean intervention by the “peacekeeping forces under the supervision of the OSCE” mentioned in Article 36.III? In which case what does “under the supervision of the OSCE” mean? The word supervision is not precise in legal terms. Does it mean a power of decision over the forces in question, or just a role of observation and reporting to the OSCE?


Fourth, to avoid conflictual types of intervention, it is necessary to devise specific OSCE procedures for the Moldovan federation. The example mentioned above of the judges in the Bosnian Constitutional Court appointed by the President of the European Court of Human Rights provides only one of the many possible ways to internalize the role of international organisations. It may be interesting to consider the extent to which the OSCE might also provide for specific mechanisms for the resolution of intra-state conflicts of its members.[xii] Since the end of the 1980s, the OSCE has developed a number of procedures to resolve disputes among its members. The Court of Conciliation and Arbitration, established in 1992, binds those participating states who have agreed to it. An ad hoc Conciliation Commission or an ad hoc Arbitral Tribunal is established when requested. The OSCE Permanent Council has also a role in mediating disputes. These various alternatives show that it is possible in principle to devise particular OSCE mechanisms for intra-state disputes in Moldova, which could also give a prominent role to the two other guarantors to the conflict (Russia and Ukraine).


Fifth, some questions arise from the very different nature of the four guarantee chapters. For the political guarantees one is entering into what might usually be the competence of a constitutional court. We have already discussed the role of such a body above. One could indeed imagine a court of this type, as a complement to the role of one or more high representatives. For the economic and social policy guarantees indicated in Articles 36 II and IV it should be clear how the guarantee system would work. For example it is understandable that there should be ‘equal’ rights both to social benefits and human rights. The constitutional court or guarantors could make rulings over complaints that this was not being respected. Such rulings might be equivalent to rulings of the European Court of Justice within the European Union, where it is accepted that this court has supreme jurisdiction. If this type of model were to be adopted, this should be made clear. If not, there would remain question whether the term ‘guarantee’ is being used in a valid way.


Some other provisions are implausible subjects of ‘guarantee’, as or example in Article 36.I which states that “issues regarding the restoration and raising of the economy shall be solved (…).”. We finally note that the role of the peacekeeping forces in Article 36.III is subject of a separate document, which we have not seen.





[i] Bruno Coppieters is Associate Professor and Head of the Department of Political Science of the Vrije Universiteit Brussel (VUB). Michael Emerson is senior researcher at the Centre for European Policy Studies (CEPS), Brussels. The authors would welcome comments by email: and

[ii] For an in-depth analysis of this draft agreement see Vladimir Socor, ‘Federalization Experiment in Moldova’, Russia and Eurasia Review, Vol. 1, Issue 4, July 16, 2002,

[iii] On these definitions see Bruno Coppieters, Federalism and Conflict in the Caucasus, London, The Royal Institute of International Affairs, 2001, pp. 6-7.

[iv] The various ‘national’ communities do not necessarily constitute the majority of these entities, as demonstrated by the Soviet federal example, where some of the nations constituted a minority in ‘their’ Union or Autonomous republic.

[v] On ethno-federal and territorial types of federal arrangements see Bruno Coppieters, ‘Ethno-Federalism and Civic State-Building Policies: Perspectives on the Georgian-Abkhaz Conflict’, in Regional and Federal Studies, Vol. 11, No 2, pp. 74-75. Concerning the delimitation of borders between the federated units, the draft provides for a certain flexibility. According to Art. 13 of the draft agreement, « the borders of the state-territorial entities of the Republic of Moldova may be changed by their consent and that of the Republic of Moldova ».

[vi] There is no clear delimitation between article 15 that defines the competencies of the federal level and article 16 that defines the joint competencies. According to article 15, for instance, the federal level has the competence to “establish the fundamentals of policy and programs in the areas of State, economic, ecological, social, cultural, and national development of the Republic of Moldova”. It is obvious that in in order to apply on the federated level policies whose principles are designed on the federal level may lead to conflictual interpretations. It is further unclear how to differentiate article 15 from article 16 in these various fields of governance without creating numerous points of friction. Article 15 is stating among others the exclusive right of the federal level to develop the “fundamentals of policy and programs’ in the areas of State, economic, ecological, social, cultural, and national development of the Republic of Moldova, whereas article 16 is stating that most of these policy fields are a matter of joint competence in their implementation.

[vii] See Michael Emerson and Nathalie Tocci, “Cyprus as Lighthouse of the east mediterranean – shaping re-unification and EU accession together”, CEPS, 2002.


[viii] According to Steven D. Roper, “the linguistic concerns of the Russophone population of Transdnistria were a salient factor underlying the outbreak of conflict”, but the “pragmatic considerations of the regional elite make this conflict a regional rather than an ethnic issue.” See Steven D. Roper, Regionalism in Moldova: The Case of Transnistria and Gagauzia, Regional & Federal Studies, Vol. 11, No 3. According to Gottfried Hanne, this conflict, “despite being known as the Transdniester conflict (…) is not so much regional as rather of an ideological, power-political, economic and in part ethnic nature. Gottfried Hanne, Der Transnistrien-Konflikt: Ursachen, Entwicklungsbedingungen und Perspektiven einer Regulierung, The Transdniester Conflict: Origins, Determinant Conditions and Prospects of Settlement, Bericht des Bundesinstituts für Internationale und Ostwissenschaftliche Studien, No 42/1998 (20. October 1998).

[ix] On this issue see the writings of Donald Horowitz.

[x] One of the failings of the 1960 arrangement for Cyprus was precisely linked to the functioning of the Supreme Constitutional Court. The Court was composed of three Judges: one Greek Cypriot, one Turkish Cypriot and a neutral President. The President of the court was Prof. Ernest Forsthoff from Heidelberg, chosen jointly by the Greek Cypriot Republic’s President and the Turkish Cypriot Vice-President. This was not sufficient to guarantee the Court’s impartiality, because both Cypriot judges became soon public advocates for their community’s positions. See Thomas Ehrlich, Cyprus 1958-1967, Oxford, Oxford University Press, 1974, pp. 41-45.

[xi] Article IV of the 1960 Treaty of Guarantee stated the following: “In the event of a breach of the provisions of the present Treaty, Greece, Turkey and the United Kingdom undertake to consult together with respect to the representations or measures necessary to ensure observance of those provisions. In so far as common or concerted action may not prove possible, each of the three guaranteeing Powers reserves the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty.” Ehrlich, op. cit., p. 65.

[xii] On the following Coppieters, Federalism and Conflict in the Caucasus, op. cit., pp. 51-2.