(
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
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
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
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.
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.
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
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
A serious risk for future conflicts between
the
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
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
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
In the case of the ethno-federal
arrangements to be found in
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
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]
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
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
The role of the three guarantors, the
First, it needs to be clarifed whether the
three guarantors are authorised to act individually or only jointly. We may
mention the example of
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
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
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),
[ii] For an in-depth analysis of this draft agreement see Vladimir
Socor, ‘Federalization Experiment in
[iii] On these definitions
see Bruno Coppieters, Federalism and Conflict in the Caucasus,
[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
[vii] See Michael Emerson and Nathalie Tocci, “
[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
[ix] On this issue see the writings of Donald Horowitz.
[x] One of the failings of the 1960 arrangement for
[xi] Article IV of the 1960 Treaty of Guarantee stated the following:
“In the event of a breach of the provisions of the present
[xii] On the following Coppieters, Federalism and Conflict in the Caucasus, op. cit., pp. 51-2.