Crossing the line: Dealing with cross-border communities EDITED BY BERTUS DE VILLIERS With contributions by Eva Maria Belser, José Mário Brasiliense Carneiro, AJ Brown, Mark Bruerton, Peter Bussjäger, Silvia Díez Sastre, Isawa Elaigwu, Heinrich Hoffschulte, John Kincaid, Kai Schadtle, José M Serna, Wladimir Antônio Ribeiro, Rama Naidu, Sagie Narsiah and Francisco Velasco Caballero. KONRAD-ADENAUER-STIFTUNG • OCCASIONAL PAPERS • JOHANNESBURG • JULY 2009 © KAS, 2009 All rights reserved While copyright in this publication as a whole is vested in the Konrad-Adenauer-Stiftung, copyright in the text rests with the individual authors, and no paper may be reproduced in whole or part without the express permission, in writing, of both authors and the publisher. It should be noted that any opinions expressed are the responsibility of the individual authors and that the Konrad-Adenauer-Stiftung does not necessarily subscribe to the opinions of contributors. ISBN: 978-0-9814032-5-0 Published by: Konrad-Adenauer-Stiftung 60 Hume Road Dunkeld 2196 Johannesburg Republic of South Africa P O Box 55012 Northlands 2116 Johannesburg Republic of South Africa Telephone: (+27 +11) 214-2900 Telefax: (+27 +11) 214-2913/4 E-mail: [email protected] www.kas.org.za Cover design: AdamBele Design Editing, DTP and production: Tracy Seider – [email protected] Printing: Stups Printing The authors Eva Maria Belser teaches at the Faculty of Law, University of Fribourg. She is director of the International Research and Consulting Centre of the Institute of Federalism and academic director of the Executive Master in Children’s Rights. Belser has studied in Fribourg, Paris and Cape Town and has published extensively in various fields. Her main interests are constitutional law, comparative law, human rights law, international economic and trade law, children’s rights, federalism, democracy and globalisation of law. José Mário Brasiliense Carneiro (PhD in Business Administration from the Getulio Vargas Foundation, São Paulo) is a lawyer and director of Oficina Municipal, a Konrad-Adenauer-Stiftung (KAS) partner non-governmental organisation in Brazil. Brasiliense Carneiro was a project coordinator at the KAS study centre in Brazil (1992–2002) and before that a senior consultant at the São Paulo State Government. AJ Brown (PhD) is a professor of Public Law at Griffith Law School, Griffith University on Australia’s Gold Coast. He has worked or consulted at all levels of government in Australia, including for the office of the Commonwealth Ombudsman as a state ministerial policy advisor and as associate to Justice GE ‘Tony’ Fitzgerald AC, President of the Court of Appeal of the Supreme Court of Queensland. Brown is currently a member of the Australian Local Government Association’s Expert Group on constitutional recognition of local government in Australia, and director of Griffith University’s Australian Research Council–funded federalism project. iii iv CROSSING THE LINE: DEALING WITH CROSS-BORDER COMMUNITIES Mark Bruerton is a final-year law student at Griffith Law School, Griffith University on Australia’s Gold Coast, and a research assistant with Griffith University’s Australian Research Council–funded federalism project. Peter Bussjäger (PhD in Jurisprudence) is a professor of Constitutional Law, Administrative Law and Administrative Studies at the Department for Public Law, University of Innsbruck. He is also director of the Institute of Federalism at Innsbruck and director of the Land Parliament of Vorarlberg. Since 2005 Bussjäger has been a member of the administrative court of the Principality of Liechtenstein. His main research fields are federalism (Austrian and European), studies on multilevel systems, administrative gov- ernance and environmental protection law. Bussjäger has been published in many Austrian and German law gazettes and books, including Die Organisationshoheit und Modernisierung der Landesverwaltungen (1999), Jenseits des Politischen (2002) and Homogenität und Differenz (2006). Bertus de Villiers holds the degrees LL.B, LL.D (University of Johannesburg) and is admitted as legal practitioner in South Africa and Australia. He has more than 20 years’ involvement in constitutional research and development. De Villiers has undertaken extensive comparative research on various issues arising from federalism. He was a technical advisor to the committee responsible for the demarcation of provinces in South Africa. Currently he is a member of the State Administrative Tribunal of Western Australia and a visiting fellow at the Law Faculty of the University of Western Australia. Silvia Díez Sastre (PhD Law) is an Administrative Law professor and academic secretary at the Institute of Local Law, Universidad Autónoma de Madrid. Her recent publications on local law include: Administrative Verflechtungsbeziehungen in spanischer Rechtsordnung, Die Verwaltung, Beiheft 8, 2009, pp 29-51; and with Francisco Velasco Caballero, El ejercicio de competencias administrativas por el Pleno municipal en el Ayuntamiento de Barcelona, Cuadernos de Derecho Local 17, 2008, pp 49-69. J Isawa Elaigwu (PhD) is a professor emeritus of Political Science at the University of Jos, Nigeria and is currently president of the Institute of Governance and Social Research in Jos. Elaigwu’s work has been widely THE AUTHORS v published both within and outside Nigeria. He has also consulted to many national and international agencies. Heinrich Hoffschulte (PhD) is currently Commissioner for European Questions of the Association for Communal Policy, and in this capacity member of the Federal Committee for Foreign, European and Security Policy of the Christian Democratic Union in Germany. Hoffschulte was chair of the United Nations Expert Group for a World Charter of Local Autonomy from 1998–2002 and has held numerous posts in prominent European organisations. He is also a member of the United Nations Advisory Committee on Local Authorities and of the United Nations Advisory Group of Experts on Decentralisation. Hoffschulte has lectured for the Council of Europe on decentralisation and local and regional self- government in numerous countries in Middle and Eastern Europe, Latin America, Asia and Africa. John Kincaid is the Robert B and Helen S Meyner professor of Government and Public Service and director of the Meyner Center for the Study of State and Local Government at Lafayette College, Easton, Pennsylvania. Kincaid is senior editor of the Global Dialogue on Federalism, an elected fellow of the National Academy of Public Administration and co-editor of Constitutional Origins, Structure, and Change in Federal Countries (2005), Interaction in Federal Systems (2008) and Local Government in Federal Systems (2008). Kai Schadtle is a research associate, lecturer and doctoral candidate at the University of Tübingen. His research focuses on German Constitutional Law and Public International Law, particularly in the area of state-society relations. Schadtle holds a degree in Law and is currently assistant to Professor Dr Martin Nettesheim at his Chair for German Public Law, Public International Law, European Union Law and International Political Theory. José M Serna (PhD in Government, University of Essex, England) has been a researcher at the Institute of Legal Studies (Instituto de Investigaciones Jurídicas), National University of Mexico since 1995. He was a visiting professor at the Law School of the University of Texas (Austin campus) from 1997–2001. Serna is the author of El Sistema Federal Mexicano, Un Análisis Jurídico, UNAM, México, 2008. vi CROSSING THE LINE: DEALING WITH CROSS-BORDER COMMUNITIES Wladimir Antônio Ribeiro is a lawyer and a university professor with a Master’s degree in Constitutional Law from the University of Coimbra. Ribeiro was a special consultant to the Presidency of the Republic and to the Ministry of the Cities in Brazil, integrating the team that was tasked with writing the Brazilian Law of Public Consortia, among other projects. Rama Naidu (PhD in Social Geography) is executive director of the Democracy Development Programme, a non-governmental organisation working towards the consolidation and promotion of democratic values and principles in South Africa. Naidu has written widely on the issues of public participation, local government and transformation and has presented his ideas at many national and international fora. He is an organisational development practitioner by inclination and enjoys working at the interface of research and practical programmes in order to design interventions that are both innovative and sustainable. Sagie Narsiah (PhD from the Graduate School of Geography, Clark University, US) teaches in the Geography Department at the University of KwaZulu-Natal, Pietermaritzburg, South Africa. His field of expertise is the geography of development with a specific focus on development and social theory. Linked to this are research interests in neoliberalism and the delivery of basic services in South Africa. Narsiah also has an ongoing interest in boundaries, boundary disputes and development, and social movements. He has published work on boundaries and development. Francisco Velasco Caballero (PhD Law) is director of the Institute on Local Law, Universidad Autonoma de Madrid. He is also an Administrative Law professor and was a lawyer at the Constitutional Court of Spain from 1999–2001. His recent publications on local law include: Autonomía local y subsidiariedad en la reforma de los Estatutos de Autonomía, Anuario del Gobierno Local