The Organization for Security and Cooperation in Europe (OSCE) is organizing roundtable talks on power-sharing in Ukraine. OSCE Member States are well-placed to share their experience distributing governance responsibilities in post-conflict countries undergoing political transition.
Following are some legal and political issues for Ukrainians to consider:
The concept of self-determination is enshrined in the Universal Declaration on Human Rights. It emerged in response to colonial rule and the end of empires. When identity is denied or suppressed, ethno-politics result and conflict can ensue. A group may want to secede and constitute its own state when its rights are systematically abused. Self-determination does not, however, necessarily mean independence. A distinct ethnic, racial, or religious community can uphold its identity through constitutional power-sharing, including measures to protect and promote communal rights.
Constitutional power-sharing involves the horizontal distribution of responsibilities to different branches of government, which defines relations between the executive, legislature and judiciary, and establishes a system of checks and balances. The vertical separation of powers involves the division of power among the different national and subnational levels of government. Power-sharing seeks to foster compromise and consensus in deeply divided societies.
A range of associational arrangements exists to address conflicts between center-periphery, majority-minority, or powerful-powerless. Each associational arrangement seeks to maintain the existing state structure, while harmonizing competing claims.
A unitary state is governed by a single unit, the central government, which exercises final authority. Subnational units may exist in a unitary state, but they only have powers that are allocated by the central government. In a unitary state, subnational units are created and abolished and their powers may be broadened and narrowed by the central government.
The central government in a unitary state often retains the right to revoke or amend devolved powers. Symmetrical devolution allocates the same powers to all subnational units. In asymmetrical arrangements, regions vary in their power and status.
Federalism accommodates differences among diverse peoples who enter into a common, often democratic, political order. Sovereignty is shared between the central government and subnational units. Citizens have rights secured by both the central government and subnational authority. States constituting the federation have an existence and functions that cannot be unilaterally changed by the central government.
Individual and Group Rights
The best way to serve group or minority rights is through a bill of rights upholding basic individual and human rights. The protection and promotion of communal rights is a pro-active process.
Regional and cultural autonomy can exist in a federal system to enhance the federal distribution of powers. Autonomy can also be implemented by a unitary state as part of an overall strategy to devolve power from the central government to its regions. Autonomy often includes arrangements in the fields of governance, economy, and culture.
Subnational units can include local executive, legislative, or judicial systems. The administration of justice is advanced through local security, drawing personnel from the communities they serve. Subnational units may also have international representation by, for example, establishing foreign trade or cultural liaison offices. They can also participate in international agreements involving security, counter-terrorism, environment, and health.
Control over economic affairs may be handled by the national government, the subnational unit, or jointly by both. The ability to raise revenue, either via taxes or customs collection, is critical to local ownership of the economy. So are managing the development of natural resources, trade employment, ownership of land, and choices around the use of currency. Varying degrees of control over these areas dictate the level of self-government of a subnational unit.
Culture typically encompasses language, education, religion, and cultural and symbols. Language is integral to cultural identity. Use of local languages can encompass education, language proficiency for state and local government officials, and language used for local government officials, in official legal documents and in legal proceedings. Decisions about education can involve the language of instruction, the curriculum, the construction and maintenance of schools, teacher standards and salaries. The use of local language in local print, television, and electronic media is important. Religion and culture are often synonymous. Cultural symbols include a flag, a seal, and an anthem.
Ukraine is not the first country to undergo governance and security challenges arising from conflict and political transition. Like other countries, Ukraine will have to consider transitional justice strategies that balance truth-telling and accountability. It will also need a plan for disarming, demobilizing, and reintegrating both pro-independence fighters in Eastern Ukraine, as well as nationalist groups such as Right Sector. Officials in Kiev have rejected "federalization" as a topic for negotiation. They see it as a pit-stop on the path to independence. They refuse to talk with those with "blood on their hands." They think it condones violence. Rather than impose pre-conditions for dialogue, all options should be on the table. OSCE Member States have vast experience that is relevant to Ukraine. International scholars also have insights to share on power-sharing.
Mr. Phillips is Director of the Program on Peace-building and Rights at Columbia University's Institute for the Study of Human Rights. He served as a Senior Adviser and Foreign Affairs Expert to the U.S. State Department during the administration of President Clinton, Bush and Obama.