Democracy activists in Myanmar call for federal democracy for the country’s 135 ethnic groups as part of a constitutional path forward from military dictatorship. Politicians in Iraqi Kurdistan seek to preserve the existing federal structures that have protected their region under the 2005 constitution. Many outside of the Bharatiya Janata Party in India look to federal states to insulate them from the Modi government’s over-centralization of power.
There are good reasons federalism has a worldwide reputation as a bulwark of human rights and the protection of minorities. The constitutional structure of federal states facilitates multi-level dialogue and cooperation, allows for local self-governance, and fosters nationwide norms of power-sharing and consensus-building.
Yet, federalism is not a panacea, and human rights advocates would do well to consider—and aim to avoid—the four pitfalls below, drawn from examples of federalism in the United States and Canada.
Federalism, in itself, cannot always reflect the interests of minorities who are geographically dispersed. When ethnic, racial, religious, linguistic, and other types of minority groups are geographically concentrated in ways that align with the political boundaries of federal units, the democratic advantages of federalism can be considerable.
Within Canada, for example, federalism enables the province of Quebec to protect its distinctive linguistic, legal, and cultural heritage while also wielding significant influence at the national level in Ottawa. The entrenched status of Francophones as a distinct society within Canada and the protected status of French as an official language nationwide has spillover effects beyond Quebec, benefiting French speakers in other provinces.
Yet, unlike Quebec, many types of minorities do not constitute a numerical voting majority within the boundaries of any federal unit of their countries. This is especially the situation for certain ethnic and racial communities living in Canadian provinces and US states. In such cases, remedies for violations against human rights with regard to, for example, freedom of religious practice or protection from invidious discrimination will continue to rely on the direct intervention and support of the national government. However, this is not always a straightforward matter.
Systems of federalism sometimes exclude or marginalize even some geographically based minorities, especially Indigenous peoples. Although federalism generally covers most of the territory and population of a country, some groups may be excluded intentionally or due to historical circumstances.
In the United States, the federation gradually grew from 13 to 50 states, all of which enjoy equal powers of self-government, hold seats in Congress, and wield electoral votes in presidential elections. Although between 1791 and 1959, most US territories gained statehood, six permanently populated territories still remain outside the system of federalism. These include the commonwealth of Puerto Rico and the federal district of Washington DC, each of which has more population than some states, along with four other small island territories in the Caribbean and the Pacific. These territories exercise a degree of self-governance but all of them are under the final authority of a US Congress in which they have only non-voting delegates, representing a failure of the principles of democratic federalism.
Even more complicated is the status of Native American nations under US federalism. Americans of Indigenous origins are citizens of the United States as well as of the state in which they reside, but their tribal lands are, in practice, only partly self-governing. On the one hand, the status of Native American nations as sovereign entities is legally recognized. On the other hand, they remain subject to a unique—and many contend discriminatory—set of federal laws and regulations that exist outside of the formal system of federalism. Although individuals have the right to vote within their state, Native American nations send no delegates to Congress, sometimes in direct contravention of treaty obligations.
Federalism can be abused to violate human rights within federal units. The powers of self-governance exercised by federal units can be a double-edged sword because their insulation from interference by the national government can make it hard to prevent abuses of local minorities.
Indeed, “States’ Rights” was the banner under which the entire system of racial segregation was legally sanctioned throughout the American South for more than a century after the end of the US Civil War in 1865. Today, individual states continue to target groups that their governments disfavor, with frequent targets being racialized populations, migrants, and LGBTQI+ people.
Notwithstanding the system of federalism, the US government has powerful constitutional means by which to address such abuses, including the Supremacy Clause found in Article VI or the equal protection guarantees of the Fourteenth Amendment. However, history has shown that political will can be hard to muster at the national level (this is at least partly due to the equal representation of all states in the US Senate, which is—ironically—an integral component of US federalism).
Federalism may promote confrontation rather than collaboration. In many cases, federalism (or similar related processes of devolved government) may defuse rather than ignite impulses toward political separatism. Nevertheless, the distinct political and legal identity of federal units may also lay the groundwork for violent unilateral secession.
The US Civil War is a well-known example of the existence of powerful state governments fueling a devastating conflict. A more recent, bloodless example comes from the independence referendum held in 1995 by Quebec. Separatists lost by less than one percentage point, but had the outcome been different, Canada would have entered uncharted constitutional territory.
Facing this reality, the Canadian Supreme Court rendered its Reference Re: Secession of Quebec in 1998, which formed the basis for the Parliament of Canada to enact the landmark Clarity Act in 2000. Taken together, the court decision and subsequent legislation set what can be considered an international gold standard to balance the interests of the nation as a whole, the federal unit seeking legal separation, and internally impacted groups, including Indigenous peoples. The hope is that the principles laid out in Canada can serve as a way to peacefully promote both the self-determination of peoples and the practical realities faced by existing governments to sustain their territorial integrity.
Conclusion
It is important to note that simply being a federal state “on paper” provides no guarantees: formally, both Russia and Venezuela are constitutional federations, yet their citizens suffer greatly under highly centralized governments that routinely abuse human rights. Nonetheless, democratic federalism is usually a powerful protector of minority rights and promoter of human rights. The four pitfalls outlined above suggest some of the areas in which supporters of federal democracy must take special care in its application.