Santorini 22 – 25 September 1994 CDL-STD(1994)011 Or. Engl. Science and technique of democracy No. 11 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) The modern concept of confederation Santorini, 22-25 September 1994 TABLE OF CONTENTS Opening session ..................................................Error! Bookmark not defined. Introductory statement by Mr Constantin ECONOMIDES ..................................................... 3 Historical Aspects ...........................................................................................5 Conceptual Aspects .......................................................................................39 a. The classical notions of a confederation and of a federal state - Report by Professor Giorgio MALINVERNI ................................................... 39 b. The modern concept of confederation - Report by Gérald- A. BEAUDOIN .......................................................................................................... 56 c. Towards a new concept of confederation - Report by Professor Murray FORSYTH ..................................................................................... 64 d. A new concept of confederation - Intervention by Mr Maarten Theo JANS ................................................................................................... 76 Examples of present and possible applications ................................................77 a. International and constitutional law aspects of the preliminary agreement concerning the establishment of a confederation between the Republic of Bosnia- Herzegovina and the Republic of Croatia - Report by Mr Stanko NICK .............................................................................................................. 78 b. Comments on the preliminary agreement concerning the establishment of a confederation between the Federation of Bosnia and Herzegovina and the Republic of Croatia (Washington Agreements) - Report by Professor Sergio BARTOLE.................................................................................................................. 85 c. Washington agreements - Intervention by Mr Mariofil LJUBIC ...................................................................................................................... 90 d. Washington agreements - Intervention by Mr Avdo CAMPARA ................................................................................................................ 94 e. The RussianFederation and the Commonwealth of Independent States (CIS): legal nature, current situation and development prospects - Report by Mr Nikolai V. VITRUK ..................................................................................................................... 97 f. Some features of confederation between the Baltic States - Report by Mr Kestutis LAPINSKAS ........................................................................ 110 g. The idea of confederation in central asia: searches, problems and ways of decision-taking - Report by Professor Serikul KOSAKOV................................................................................... 115 h. The CIS and the idea of federaling Ukraine - Report by Mr Leonid YUZKOV - chairman of the Constitutional Court of Ukraine ....................................................................................................... 119 Perspectives on the idea of confederation in Europe (here understood as based in particular on the European Union experience) .......................................................................................122 a. Contemporary concept of confederation in europe - lessons drawn from the experience of the European Union - Report by Mr Yves LEJEUNE ..................................................................... 122 b. New idea of confederation in Europe - Intervention by Mr Armando TOLEDANO LAREDO............................................................................ 142 c. New idea of confederation in Europe - Intervention by Prof. José Juan GONZALEZ ENCINAR .................................................................. 143 Conclusions and closing speech - by Mr ECONOMIDES ...............................147 List of participants ......................................................................................150 Opening statement by Mr Constantin ECONOMIDES, Professor at Pantios University, Director of the Legal Department, Ministry of Foreign Affairs OPENING STATEMENT Introductory statement by Mr Constantin ECONOMIDES Mr President, Ladies and Gentlemen, I have the honour, on behalf of the government of Greece, and more particularly the Ministry of Foreign Affairs, of welcoming you to Santorini. I hope that your stay will be pleasant and our work will be successful. Allow me to say a few words on the topic chosen for the Unidem Seminar, namely the modern concept of confederation. The topic was proposed by the President of the Venice Commission, Mr La Pergola, one of whose great talents is an ability to seize on ideas with potential. The proposal was warmly welcomed by Greece, essentially for two reasons: a. First, because the sources of the federalist principle can be traced back to ancient Greece. The leagues that linked the Greek cities of antiquity, notably the amphictyonies, constituted the first application of the federalist concept in the broad sense. This question will be developed shortly by Prof. Kitromilides. b. Second, the modern institution of confederation is of obvious relevance today. In a world profoundly shaken in the past years by radical and indeed revolutionary change, in a world undeniably in crisis and seeking to create a new order and equilibrium, the confederation as an institution has become increasingly topical and, given its flexibility, may in fact play an important regulatory role. In particular, a confederation might halt or at least attenuate the phenomenon of disintegration, by far the predominant trend in countries of Eastern and Central Europe today, most often brought about by the pursuit of fanatical, not to say mindless nationalist policies. The countries of Western Europe, on the other hand, clearly reflect the reverse tendency, i.e. integration, even at the expense of the nation State, the European Union being the best example. A confederation can also accommodate a union, association or assembly of two or more States wishing to co-operate closely without going as far as total fusion in a federal State and to retain their full sovereign national identity. Needless to say, confederations today can only be based on principles that all States accept, at least in Europe, such as pluralist democracy, the pre-eminence of the rule of law, respect for human rights and the market economy. The Washington Agreements of 18 March 1994 mark a first official rough plan for a confederation between Croatia and the new Federation of Bosnia-Herzegovina, uniting the Muslims and Croats of that state. Several confederate elements are also present in the Commonwealth of Independent States, and even more so in the European Union, which to a certain extent is based upon the principle of confederation. But I shall stop there, because I do not want to anticipate the papers scheduled for this seminar on the history, concept and applications of the confederation as an institution, to be presented by the outstanding specialists whom we have the good fortune to have among us. Before commencing our work we would like to welcome to the seminar Mr H. Frank, member of the Parliamentary Assembly of the Council of Europe, Mr Toledano Laredo, who represents the European Union, Mr F. Quinn of the Office of Democratic Institutions and Human Rights of the CSCE, and the delegation from Bosnia-Herzegovina. FIRST WORKING SESSION Chaired by Mr Michael TRIANTAFYLLIDES Historical Aspects a. Greek precedents to the confederal organisation of states Report by Prof. Paschalis M. KITROMILIDES b. The historical development of confederations Report by Prof. Jean- François AUBERT a. Greek precedents to the confederal organisation of States - Report by Prof. Paschalis M. KITROMILIDES, University of Athens The idea of a community of states, held together by shared principles, by commonly accepted rules of conduct and by the transaction of a significant range of their affairs through common institutions is mainly associated with the historical experience of the modern world, especially with the various attempts at supranational organisation or integration in the twentieth century. Yet at the origins of the European tradition, in the ancient Greek world, we can find precedents and practices of organised inter-state links which foreshadow through the centuries these modern projects and aspirations. These communities of independent Greek states in the archaic and classical period could be considered as anticipations of modern attempts at integration and the creation of confederal institutions. In this brief presentation it is not of course possible to narrate the rather complicated history of Greek attempts at the construction of confederal structures. These attempts stretch over a period of several centuries and extend all over the wide geographical space of the Greek world in continental and insular Greece, Asia Minor and Magna Graecia in Southern Italy and Sicily. It may be more useful for our present purposes to develop a conceptualisation of the surviving evidence about Greek attempts at suprastate organisation in the hope that this will contribute to an understanding