2023 Winter School on Federalism and Governance: A reflection on federalism-induced inequalities
Theoretically, federalism and equality are mutually exclusive. If federalism, according to the classic definition of Daniel Elazar, means “self-rule plus shared rule”1, then the self-rule that allows for different rules in different places within the same state, contradicts the equality that is encouraged through shared rule.2 However, such an approach to the relationship between federalism and equality only considers equality in its formal sense of treating all people exactly the same as each other, and disregards factual differences between individuals which may impact their socio-political abilities.3 Federations have the task of finding the right balance between the acceptability and excessiveness of inequality, as well as the extent to which different treatments of individuals are in fact necessary to achieve substantive equality. The Winter School on Federalism and Governance, organized by Eurac Research and the University of Innsbruck, kicked off with this nuance between the concept of federal (in)equalities. As an introduction to the theme of federalism and equality, the idea of substantive equality through different treatment of federal subunits – and by extension their respective individuals – seems quite acceptable. Indeed, the essence of equality is not just to treat comparable situations the same, but also to treat different situations differently.4 In this essay, I argue that federal states have a distinct opportunity to protect citizens’ rights to as high an extent as possible through the possibility of allowing positive inequalities between subunits when there is no consensus to lift the minimum floor of basic rights across the entire country. The principle of federal comity applied between states could then protect those subunits which wish to go further than the minimum floor.
Inequality of human rights protection through the minimum floor paradigm
More controversial than trying to increase substantive equality through different treatment, is the discussion about when a different, multi-scalar approach to rights leads to a difference in protection of individuals’ human rights. Why should an individual from one subnational unit enjoy certain rights, whereas another individual from the same country, but a different subunit, does not? However, such a question takes a normative perspective rather than a pragmatic one. In fact, some states have indeed lowered their human rights protection, and as such one cannot take the highest possible level of human rights protection for granted. Recognizing this, it can be appreciated that federal inequalities between citizens of different subunits create room to ameliorate human rights protection, rather than impair it.
A current prominent example is the discussion around abortion in the United States. Since the Supreme Court’s overturning of Roe v. Wade in June 2022, women’s general right to have an abortion is no longer unequivocally supported. This means that the possibility of abortion is not guaranteed across the entire American territory, but rather that states may decide for themselves whether to allow for abortion. In other words, it signifies that the minimum standards upon which all parties in the federal system agree have lowered.5 Eva Maria Belser calls this the minimum floor paradigm: the model by which one assesses rights and equality through the common basic level of standards within a territory.6 Utilizing this paradigm, it is easy to argue that the basic level of standards agreed upon by all levels of a federal system should be as high as possible: the higher this basic level that is nationally agreed upon, the higher the level of protection for individuals to enjoy within a subunit. Hence, lowering the minimum floor can be seen as deplorable in se. However, it does not necessarily affect the equality of individuals. After all, the decision not to protect the right to abortion is applicable throughout the whole country. Indeed, the only way in which lowering the minimum floor may decrease equality of human rights protection is because states may choose to go beyond the minimum standard and guarantee a stronger protection of rights for the individuals within their respective jurisdiction.
An argument against this type of inequality is that citizens within the same country should not have different rights depending on the territory they happen to find themselves in. Arguably, moral disagreement, should not be deferred to a subnational level, but citizens should rather be able to enjoy the same rights everywhere across the country. By contrast, because of principles such as non-interference and state sovereignty, such differences are widely accepted when they concern different countries (as opposed to different subnational units within the same country): we accept that different countries apply different standards to their respective citizens. Why not accept the same distinction within countries with a federal political structure? The international human rights system can be extrapolated internally in federal states.7 Such forms of inequality are not regrettable, but instead, federal subunits should be encouraged to embrace their function as laboratories and experiment with more far-reaching rights.8 Especially since their potential success may in turn inspire national and international innovation.9
Nonetheless, this type of “positive” inequality does not come without its challenges. One can imagine the many questions that the US Supreme Court will have to address now that it has accepted inequality on abortion rules across states: seeing the internal freedom of movement, will citizens be allowed to travel across states to have an abortion? Are doctors who are domiciled in a state which does not allow abortion, still allowed to perform abortions in another state? Can they refer patients to colleagues over state borders? How would this relate to economic inequalities between citizens and their capacity to travel interstate? Could medication which is prohibited in a certain state still pass through it in order to reach another state in which it is freely on the market, or could it be confiscated? More and more states are trying to formulate an answer to these questions and in doing so, bolster their own position on the topic. The federal state of Wyoming has recently passed a bill which takes effect on 1 July 2023 prohibiting anyone to “prescribe, dispense, distribute, sell or use any drug for the purpose of procuring or performing an abortion on any person”.10 It effectively becomes the first state to enact such a comprehensive ban on any and all abortion-inducing medication, and it is expected that many more states will follow.11 In this way, the schism between the traditionally democratic and traditionally republican states is only exacerbated, and the disintegration resulting from it is a challenge that will require careful consideration.
The principle of comity as a start to the solution
Questions of unequal situations between citizens within federal structures call to mind a second case study. The Court of Justice of the European Union (CJEU) – the European Union itself being a federal system sui generis12 – answered in Coman and others v. Romania, a preliminary question from the Romanian Constitutional Court on whether there is a right to residency for a non-EU national who married an EU national of the same sex in a member state where same-sex marriage is legal.13 In its ruling, the CJEU decided that member states of the European Union must recognize legal acts performed in other EU member states – and thus must recognize same-sex marriage if it was entered into in another member state. The Court thereby essentially confirmed the existence of a principle of comity in the EU legal sphere. Comity, as Donald Earl Childress explains, is a principle which was introduced in the field of international law to encourage “US courts to apply foreign law in appropriate cases […] in order to respect the sovereignty of foreign states and their courts”.14 It has been used to explain why domestic courts invoke foreign law in transnational cases, mainly in private international law.15 As such, the principle of comity should be positioned within conflict of laws doctrine.16 Comity is often explained as a show of courtesy, and it requires a certain degree of trust, both vertically in the federal level, as well as horizontally in the fellow subnational units. To apply a federal principle of comity, a subunit would have to trust that other subunits within the same federal system have valid rationales for adhering to different rules than they do themselves.
By extrapolating the reasoning of the CJEU to federal countries, and by adopting the principle of comity and conflict of laws theory, issues of inequality could potentially be addressed in a manner that ensures a maximized degree of human rights protection. Indeed, the principle of comity reiterated internally to federal states would lead to an obligation for subnational units to accommodate the highest degree of human rights protection within their own jurisdiction. To return to the example of the conflicting rules regarding abortion between states in the USA, an applied principle of comity would safeguard each state’s autonomy by recognizing their respective set of rules. States can still choose to restrict the right of abortion, yet they would need to ensure that when a person has an abortion in a state in which it is legal, this is respected. However, in the polarized American political landscape of today, this seems like a pipe dream.
Self-rule within federal countries grants subunits the autonomy over citizens within their jurisdiction on certain policies, effectively allowing for differences between nationals of the same country. However, through the lens of the minimum floor paradigm, where the basic level of human rights is lowered in a federal country, such inequalities could be seen as positive. Indeed, one needs to recognize that in reality, there is often no consensus across an entire country for a strong protective policy because of conflicting rights. Yet, by allowing inequalities between subunits, citizens are protected as much as possible where such consensus does exist on a lower level. Federal comity thus protects areas that have gone further in their protective policies from other subnational units that try to invalidate those policies.
The application of comity between subunits of a federal state does not solve all issues regarding differences in human rights protection between citizens. It does not address, for instance, the question of when inequalities become excessive, and neither is the issue of conflicting rights solved. Still, it is an avenue worth exploring in order to augment citizens’ rights to the largest extent possible within federal systems that are unwilling to commit to a higher minimum floor of basic rights. The many experts and participants during this year’s Winter School on polarizing law and politics in federal states have already provided a first impetus for such a study.
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