Theme 2: Building on and Accommodating Diversities

Transcription

1 Theme 2: Building on and Accommodating Diversities First draft fromthomas Fleiner August Introduction The recent political crises in the world (Sri Lanka, Iraq and the Near East) did reveals how important it is to find solutions within state systems which would provide constitutional, structural, institutional and procedural tools in order to accommodate conflicting diversities, to hold or even to bring different diversities together. Diversities are not to be considered as a burden but as an asset stats can build upon. Unfortunately however, diversity is often considered by politicians as a problem states have to accommodate. In contrary, one has to consider diversities as a chance for all countries which are enriched by different languages, cultures, religions and traditions. Only, if a state finally is able not only to cope and accommodate diversities but if it lives out of the diversities and is able to make use of its diversities it will also be able to contribute for a sustainable peaceful development in the world Purpose of this Paper With this paper we intend to analyse the state of the art with regard to federalism and diversities. Actually 24 countries of the world community have some kind of a federal structure. Some countries decided for federal structures because federalism is an additional tool to limit governmental powers (USA and Germany). Some countries however did make the choice for federalism because it accommodates their diversity (e.g. India, Canada, Ethiopia, South Africa and Switzerland). In all those cases federalism was not a choice because federalism has in theory been conceived as a constitutional system to build polities on diversities. Federalism structures however, by experience were the best possibilities to accommodate diversities and in many cases it was the only possible compromise to build on a common consensus for the structure of this multicultural state. What makes federalism special as a tool to profit from and to accommodate diversities in comparison to other governmental systems? Is federalism at all relevant for constitutional and structural solutions with regard to diversities? What are the main structural, institutional and procedural elements which would enable multicultural federal states to build on their diversities?

2 These questions refer to the following issues: The first issue concerns the relationship between diversity and the modern polity. Diversity has never been considered as a fundament for the building on a polity. Traditionally constitutions either deny diversity as basic element for the nation building. They pretend rather that the nation is only composed of citizens. Others build on the majority culture of the nation (e.g. Germany). Immigration countries often try to integrate the diversities of the immigrants based on a melting pot concept. This paper proposes that the modern polities should consider diversity as a basic fundament for building on their polity. Excluded diversities disintegrate and consider themselves as discriminated and permanent losers within the majoritarian democracy. Culture, tradition, language and religion are an integral part of the human being. As polities are built on by human beings they have to be built on with regard to all dimensions of the human being. Polities cannot choose only those of its dimensions, they consider important. Human dignity requires that all dimensions of humans living within a polity are taken serious. As a consequence polities have to build on considering all dimensions of human beings. Historically federalism has been designed by the founding fathers of the American Constitution to limit governmental powers by dividing sovereignty between the federal and the state powers. In principle they considered the new federation as a main tool to strengthen their state democracies. How then, with regard to this history can federalism be a fundament for a multicultural polity? 1.2. Dimension of Diversities Human beings are different from each other because of age, gender, education, family, life etc. All these differences produce diversities. Essential for polities are diversities which may lead to a common group feeling based on features such as religion, tradition, language and culture, similar to a nation. These features create communalities of human beings which can either not be changed (e.g. common history) or only be changed by violating fundamental human rights such as religion or language. Moreover compared to economic diversities which can be changed in a society with equal chances or by political decisions which convince the majority, these diversities are not quantitative but qualitative thus the can not be changed by majority. Nor are they open to a discourse from the point of view of justice. Often they are rooted in symbols and emotions.

3 Since peoples and nations are granted according to domestic and/or international law some fundamental rights (autonomy and/or minority rights) we consider those features as essential which enable demands of a collectivity to such rights. In most cases those features depend on one side on objective characteristics such as language and religion and on the other side on subjective feelings of a we distinct from the others. If the we is mainly defined by a negative feeling of the other we come close to ethno-nationalism. If the we on the other side is based on common values which do not exclude but rather tolerate other values, the preconditions for communalities within a common polity are given. The main goal polities have to achieve is to produce a common identity shared by all diversities which induces the different diversities to foster their special identity. The state must become a motherland for its diversities. Essential in order to achieve these goals are: shared rule in law making (Constitution and Legislation eventually executive) processes, self rule (autonomy) including group rights. Nations consider themselves to have a constitutional status based on their right to self-determination. In cases where peoples create common polities with other nations they thus need to be recognized as a state building nation. In polities building on different diversities democracy needs to be consensus driven in the sense that besides the simple majority the decisions with regard to vital interests of minority nations are also accepted by the majorities of the different communities. In general they need to participate in the decision making process in order to be able to identify with the result. Different communities need also to have the possibility to foster their identities with regard to education, religion, communication, media, social networks etc. However, they can only foster their identities based through autonomy and self-rule. Multi-ethnic polities need to provide autonomy with regard to all vital issues in order to fostering local identities and build on a common identity. If vital issues had been entrusted to the centre the minorities, they risk turning into permanent losers which will reject the polity. Communities built on diversity need to grant those diversities collective group rights. Citizens belonging to minorities need to have the feeling that the cultural value of their minority is considered equal to other majority or minority values. Such feeling can only be transcended if the communities

4 are enhanced with group rights. Such group rights should however, not enable the group to interfere into basic human rights. But it may interfere in language rights and e.g. impose within its territory only the language of the group in order to defend the threatened language of the minority. For the sake of peace within the polity some human rights may be limited for the protection of the group rights. Polities building on group identities provide either some systems of shared-rule among different diversities and/or concepts of self-rule by decentralization or federalization. The most challenging issue though, is to regulate the constitution making procedure for the design of those institutions. What should be the impact of diversities on the level of constitution making? The main principle to be considered is the principle of inclusiveness, consensus and compromise. The final goal to be achieved must be to get the great bulk of the society and of the different diversities to have ownership of the constitution. Thus, the process must find the good balance between efficiency building on and accommodating diversities. Negotiators must be aware that such processes can only achieve these goals if they are able to build up trust and tolerance among the diversities based on a spirit of reconciliation, partnership and mutual respect. In the end the result needs to be approved by democratic referendum in which the nation as a whole and the great bulk of the majorities of the peoples accept the result. Unitary states do not build on diversities but can accommodate diversities only by - even asymmetric - decentralization. Federations on the other side, can provide at the same time strong self-rule for the federal units and shared-rule on the central level e.g. by a two chamber system or even on the level of the executive. Additionally federal systems can install mechanisms for peaceful management of conflicts among different diversities or build on diversities with the foundation of new federal units. Special procedures for the protection of vital interests of minorities, offices for the Executive with several members representing diversities are also possible. Finally one can imagine even a very loose federation such as the Union between Serbia and Montenegro which were almost con-federal and provided even the possibility for a unilateral secession of the federal units which is also provided for in the constitution of Ethiopia.

5 Diversities enrich politics, culture, legislation and the judiciary. They educate people to tolerance flexibility and mutual respect. By their nature human beings are diverse. A polity which does build on and accommodate diversities provides for better justice and better guarantee of human dignity because it respects the reality of the diversity of the human nature. On the other hand, main risks of diversities are stalemates and inefficiency. Any decision making process has to find the good balance between the vital interests of the different diversities and the interests of each citizen. Vital interest issues may also arise in the interest of the majority. In these cases it is most challenging and difficult to find the good balance to be accepted by all concerned diversities. Diversities can be accommodated through a unilateral right of secession and self-determination. However this is in most cases the worst case possible because in general such secessions create usually new minority problems of those diversities which do not belong to the newly created majority ethnicity. Diversities can also be associated by con-federal models based on an international treaty such as the European Union which has even drafted a treaty constitution in order to take into account the grey zone between the classical alliance of states and a new sovereign member of the international community composed of different federal units. This model has historically been used as a bottom up approach which often ended in a federal system such as the United States and the Swiss Confederation. 2. The Issue of Legitimacy Constitutionalism of the enlightement period did turn the legitimacy of the state from the grace of god into the secularized grace of the people. By this it installed people s sovereignty as major fundament for the legitimacy the polity. However, the philosophers understood the content of the notion people all human beings living within the territory of the state. Thus each human being entering in the social contract would change from the state of nature into the civil state. Philosophers of this period never questioned the notion of the people.

6 Today states and their territories emerged out of the peoples rooted historically within or immigrated into the respective area. Thus the notion of the people became linked to human beings belonging to certain national communities. For this reason the most challenging issue with regard to diversity is the concept of the legitimacy of the state based on the notion of the nation The Nation and the Legitimacy of the States In principle nations either exclude diversity because they are only composed of rational citoyens (France, Turkey), are based on common language, culture and tradition (Germany), or they ignore diversity because they set up new communalities integrating diversities into a melting pot (USA), which additionally considers native nations as special units. Actually almost all countries have to cope with the reality of multi-ethnicity. To whom in these cases belongs the state: to the rainbow nation (South Africa), to the peoples of the cantons (Switzerland), to the Spanish Nation xcluding nationalities (Spain) to the Regions and the Communities (Belgium) or to the nations, nationalities and the peoples (Ethiopia)? All these concrete examples reveal that practitioners and scholars need to explore the different possibilities to include diversities within the one nation concept without discriminating any minorities. Indeed, each polity should belong to the nation which is its bearer of people s sovereignty. Can one solve the problem by inclusiveness and label the nation as a composed nation? By accepting such solution the state needs to define the status of these different diversities. Do they have a state status and thus need to be all on equal footing? Does the polity only belong to the composed nation? Then minorities will feel discriminated as permanent losers within the majoritarian democracy. Does on the other side the state belong to all the nations on equal footing? Then the majority nation will feel discriminated with regard to the minorities. These challenges are mainly caused by the emotional and subjective feelings peoples have considering themselves to be part of a certain ethnicity. Such feelings of belonging depend often on a negative label of the others opposite to the we. How can someone, who considers him/herself to belong to a certain minority, accept to be part of a composed nation, when this nation is composed mainly by negative feeling towards the majority nation? How can one include different nations into

7 a composed nation, when those ethnicities mainly depend on the negative ethnicity? The only way to turn this dilemma into an asset is a creative concept for an integrating nation-building process Nation Building A nation building process needs produce for all members of a nation the feeling of belongingness in the sense of the we in relation to the others. For composed nations such nation building process needs unite diversities behind common values shared by the respective ethnicities and distinct from values of other nations. Universal values such as rule of law, democracy and human rights will not bring diversities together because they should unite mankind and not special federal polities. A distinguishable value could be federalism, direct democracy and/or the bottom up process of a consensus driven democracy with a concept of municipal autonomy close to collective group rights. If values, which hold and bring the concerned nations together, are commonly accepted the composed nation can build a new feeling of a we including all nations of the polity. Such nation building process determined by democratic decision making processes which do involve the entire society by elections or by votes on referenda can create the necessary feeling of togetherness and belongingness. For the rainbow nation in South Africa most important for the nation building process was the double folded constitution making process which required the adoption of an intermediary constitution and a final constitution with election processes for the constitution making assembly and the final parliament. One has to acknowledge the fact that the nation building process is a never ending process. In Switzerland - although several hundreds common history - it certainly lasted more than an other hundred years and two world wars until some kind of national feeling has been created for the federation founded in The nation building process of composed nations is a permanent process with its normal ups and downs. Processes with the aim of nation building, which discriminate within the procedure one or several communities, will never achieve a common feeling of togetherness. Only, if equal footing is respected, the nation building process will have a chance to integrate the less numerous nations into the overall composed nation. Article 2 of the Spanish constitution has until recently only recognized

8 the Spanish (Castilian?) nation and considered the other peoples as nationalities. This discrimination of the nationalities has been one of the main impediments for the creation of a Spanish (Castilian?) nation. Logically the shared rule principle with regard to all concerned nations has to be fully implemented in the nation-building process. This principle has also to be generally implemented in the civil society namely in the field of media and communication. Can a composed nation be considered as a civil society and thus form the fundament for a democracy ruled by law? By definition the notion of civil society seems to exclude any distinction of human beings based on race, language and religion. The rational individual, equal and political citizen participating in the political process is the classical unit of the traditional liberal state. People belong to an ethnic or national community because of their emotional feeling of togetherness. Accepting the idea of a composed nation thus has a consequence to recognize the emotional dimension of human beings as a political factor for the building of a polity. The challenge to build on diversities a composed nation can only be overcome, if one considers not only the rational citizen but also the emotional human being as a fundament of politics and also of a polity. One takes diversities politically only serious if one accepts diversities as part of the political reality which has to be taken care of. 2.3 Asymmetry and Nation Federal polities have not to take care at least of some asymmetries with regard to the complexity of their multicultural population. Some federations however tried to overcome this asymmetry by turning social asymmetries into legal equality. Although in Switzerland the number of German, French, Italian and Romansh speaking peoples is strongly asymmetric. At least with regard to the first three languages constitutionally they are all treated equal as official languages although in practice there are important asymmetries. The main problem for all multicultural states is how to take such asymmetries into account on the constitution making level. Some federations provided for instance equal status of the unequal federal units. The value of a vote of a citizen of Appenzell i.rh. (CH) counts 37 times more than the vote of a citizen of the canton of Zurich (CH) with the largest population.

9 In Canada the Meach Lake accord failed because it privileged the province of Quebec and would have created an asymmetry with regard to the other provinces. The Annan Plan for Cyprus has been rejected by the Greek Cypriotes mainly because it had privileged the much smaller Turkish Cypriote population. One of the main problems of the failed union between Serbia and Montenegro was the strong asymmetry of both units equalized legally by the Union. Cyprus, Serbia Montenegro, Sri Lanka, Saint Kitts and Nevis but also Belgium teach us that the most difficult challenge with regard to asymmetry has to be overcome in countries divided only by two asymmetric diversities. Other countries such as Russia, India, Australia with different types of federal Units face less explosive challenges. In most cases federations composed of different diversities are confronted with the claim for multiple loyalties. In particular the less numerous communities foster usually the loyalty of their nationals even against the loyalty towards the majority nation. Such controversies turn often into violent ethnic conflicts. Federations composed of diversities need to accept and build on multiple loyalties of their citizens. The Swiss federation as probably the only country in the world e.g. has a three folded citizenship concept. Each Swiss national needs also to be a citizen of its municipality and its canton in order to become a Swiss citizen. This legal concept of citizenship reflects the principle acceptance of multiple loyalties as fundament of the Swiss diversity. The great scholar of sociology Max Weber pretended that somebody can only have the nationality of a country if he is also prepared to sacrifice its life if needed for the sake of the country. As today the charter of the UN prohibits wars of aggression such absolute and total loyalty to one country is not needed any more. On the contrary peoples belonging to different diversities need to have loyalty to their ethnicity which may not be limited by the border lines of their country. The acceptance of multiple citizenships is but a consequence of the principle of tolerance and openness as one of the main pillars for multicultural federations. One of the most important challenges of asymmetry is the principle of equality. What has to be considered as equal: each individual or each community notwithstanding the number of its citizens? For the French unitary state concept based on the individual citoyen the answer is clear: only equality of the individual citizen counts. Based on this concept minorities and in particular diversi-

10 ties and thus ethnic communities will have to be ignored. The other extreme would be only to consider equality of the unit of a certain community. This is in principle the concept of international law which considers all sovereign states as equal. What should have priority: equal rights or the right to be equal as a member of a community? The federal system can provide a valid compromise for such dilemma by providing a two chamber system one chamber composed according to the number of the citizens and one chamber composed according to the number of the federal units. The difficult issue with regard to different quotas in the second chamber and/or to the relationship between the chambers will then still have to be decided. 3. Autonomy 3.1. Notion and Function of Autonomy Autonomy is often described as principle of self-rule. In this sense autonomy is the right of a certain unit of a state to rule the issues within its competences according to its proper interests. Local units may have self rule with regard to constitution making and thus have their proper constitution, with regard to their legislative, executive and judicial powers. With regard to the content of autonomy there are all different varieties of decentralization possible. The member states of the European Union consider themselves sovereign although an important part of their legislation is ruled by the European Union. Hon Kong is under the sovereignty of China but has its proper legal system. Greenland belongs to Denmark but is not member of the European Union. The federal Units in the Russian Federation or in Austria have less autonomy than the autonomous regions in the unitary but decentralized system of Spain. Most important with regard to autonomy are the financial resources. In fact real autonomy is only possible when the autonomous units also can levy their own taxes and have the financial possibilities to finance their tasks with their proper income. With regard to the diversities it is utmost important that financial inequalities among the different autonomous units are equalized by special tools for fiscal equalization. Such equalization is politically only feasible if there is a minimum solidarity among the different autonomous units.

11 With regard to the challenge of diversity self rule and autonomy is besides the shared rule principle the most important structural tool to accommodate different diversities within a state. Only based on autonomy the different diversities can foster their proper culture and identity. If different communities are able within an overall federal system to enhance their proper interests based on their special identities they enjoy at the same tame based on the federal system the advantages to profit from the superior federation. At the same time they do not lose their proper cultural identity, because - based on the guaranty of autonomy - they rule and decide themselves on their own cultural development. States have different possibilities to provide autonomy in order to accommodate different diversities. Within a unitary system they can decentralize by legislation special competences to different regions in order to accommodate their special demands with regard to their special vital interests. In such a system autonomy depends totally at the whim of the majority of the legislature. In states where particularly minorities are interested for stronger autonomy and devolution some constitutional guarantees with regard to the granted autonomy are indispensable for discriminated minorities. In federal systems distribution of powers is generally decided on the constitutional level. Moreover the federal units enjoy in general automatically legislative, executive and judicial powers. With regard to their constitutional autonomy they can in addition also accommodate internal decentralization and accommodate diversities by granting autonomy to their municipalities Integration and Autonomy Autonomy as a tool to accommodate diversities is often rejected with the argument that it prepares secession, it provides disintegration, it undermines solidarity within the state and it creates important inequalities. Therefore one often considers autonomy rather an impediment to integration and supports systems of multi-ethnicity based on individual human rights believing that minorities are also able to foster their special identities within the melting pot or multi-ethnic system. Who ever explores these challenges, will detect that federations with the guaranty for strong autonomy of their federal units have experienced the opposite. Indeed, it is the strong autonomy which fosters real integration of diversities, because such system can only be maintained on the bases of mutual respect and tolerance. If the citizens feel at home and secure within their local community, they will also identify as citizens of the bigger federation. They will be convinced of the win-win

12 profit as being part of the federation. They can foster their identity, profit from the advantage of the bigger state and are able to cooperate through the shared rule principle with other diversities on the common design on the central level of the federation Diversity as Fundament or Goal of Autonomy? There are different concepts of autonomy possible. In most cases autonomy is granted to local authorities based territorial border lines. Autonomous regions, federal units or even municipalities controlling a specific territory are granted autonomy. In cases where diversities are dispersed over the entire territory and where they can not by accommodated on a territorial bases, the only alternative possible is the so called personal autonomy which may be granted as collective right to certain communities. Belgium and in particular the Lebanon did provide in their constitutional system partially such concept of personal autonomy. Diversities cannot only be tolerated as a special burden by the majority nation. Diversities enrich the polity with additional values. Only by granting autonomy, which can foster the diversities and the different identities, the overall federation however will be able to profit from this enrichment. By providing autonomy to different communities the federation at the same time builds on and fosters the diversities. By enhancing diversities it enables all inhabitants of the country to feel at home within their motherland. A country challenged and enriched by its diversities has to build up on these diversities. This again requires that the diversities are given the possibilities to develop according to their proper ideas, values and interests. Only when the diversities can define themselves and build on their proper selfconsciousness they are able to cooperate on partnership bases with other diversities and thus contribute to the added value of the common nation. Autonomy guarantees that communalities develop bottom up from local identities in order to achieve finally the oval identity of the federation. 4. Conflict Management Countries challenged and enriched by diversities will never find the end of history of their country. As long as diversities exits, they are able foster their identities and their proper interests. On the

13 flourishing of their diversities the federation will itself unfold, develop and continuously build on a new design of the polity. One should in principle not seek final solutions for ones diversities. One should rather permanently look out for procedures, institutions and tools which enable a permanent and peaceful conflict management of controversial diversities Purpose of Conflict Management The main goal of the classical liberal state is liberty. The state has to provide security for the people in order to enable them to pursue their happiness in liberty. A state with diversities needs not only to seek individual liberty for all its citizens it has also to look for peace among the different diversities. Besides individual freedom, peace among communities is one of the main goals to care for by multicultural states. If individual liberty opposes to the interest of a community (e.g. individual liberty of language and interest of the group to foster its language) for the sake of peace individual liberty may give way to the overall interest of the collective liberty language owned by the community. In order to promote peace among the different diversities, federations can provide special tools to reduce nationalism for the sake of multiple loyalties. Reducing nationalism is possible by providing autonomy for the different communities on territorial or on personal bases. The Swiss experience with direct democracy reveals in addition that decision making through direct democracy in most cases reduces nationalism because often nationalism is fostered by the political elite. Voters however are usually not induced by nationalistic feelings. They seek much more their personal and not ethnic interest to be secured by legislation. Party systems, which require parties not to unite along ethnic lines but do include different diversities within a party, are additional tools to reduce nationalism on a lower political level. A cohesive nationalism is by no means the best solution to enhance peaceful procedures for conflict management among different diversities. Such cohesion can be fostered by communalities which include all different diversities. These communalities must be based on values of justice, democracy, tolerance, respect of diversity and rule of law which are not only accepted by all different eth-

14 nic communities but which establish for all communities a new and stronger identity which bears the chance to deepen the necessary solidarity among the different communities Institutions of Conflict Management The usual institutions for conflict management are the judiciary, the legislature, the constitution making power and the executive and administrative institutions. These traditional conflict management institutions will only be useful for conflict management among different diversities if they are able to detect and respect vital interests of the different diversities. Special procedures within the legislature may be needed for such protection. In order to enable the judiciary to respect the interests of different ethnicities there will be needed some constitutional guarantees such as group rights which will and can be applied in the respective cases by the judiciary. Moreover the judiciary needs to be composed of judges representing the different communities. In addition the federal system allow to delegate the organisation of the courts, the election of the judges and the procedures to the different federal units in order to accommodate the different interests and traditions with regard to the different legal cultures. Moreover on the level of the executive the different diversities will have to be some how taken into account. In Belgium the executive cabinet is composed of half of Flemish speaking and half of French speaking members. In Switzerland the federal council as executive must be composed of 7 equal members by taking care that the different language communities and regions are adequately represented. One of the most challenging features with regard to diversities is the police. In federal countries the police power can be delegated to the federal unites and within the federal units it can again been delegated to the autonomy of municipalities. In cases the police forces have to guarantee security among different diversities they need to be composed by servants which belong to those different diversities. The police needs to achieve credibility and trust among all different communities. The civil society needs to have organisational tools which enable associations, churches, parties and gender and professional groups such as labour unions which are crosscutting the borders of the fragmentation of the polity. The civil society needs to enhance communalities and common values.

15 Thus it is most important that the polity and federation does promote such crosscutting organisation and tries to prevent the fragmentation of the civil society along ethnic lines Processes of Conflict Management Delicate but important processes for conflict management are the procedures providing shared rule in decision making. They include constitution making and legislation, but one should not overlook procedures within the executive and its administration as well as within the judiciary. Shared rule procedures will only contribute to peaceful conflict management if they have legitimacy and credibility among all different communities. Such credibility depends on the fairness of the process and the opportunities each group considers to have in order to convince the opposite group to support its interests. In cases vital interests of one of the communities are at stake, special procedures might be indispensable in order to give the concerned communities the security that their minority position will be protected. In Switzerland the consensus driven democracy has proven to be one of the most important tools for legitimate conflict management. As it is very difficult to convince the population for a positive vote in a referendum all important parties including the political elite is required to find a compromise in order to achieve a comprehensive majority within the referendum. Thus, indirectly direct democracy - although majority based - forces the political elite to compromise and consensus. As already mentioned with regard to law-making, the second chamber and its power in relationship to the national chamber is of utmost importance. Besides the final legislative process in parliament consultative procedures and hearings which would provide for communities to present their specific interests within the law making procedure are additional tools to take into consideration. As a basic principle one should guarantee that law making processes are inclusive with regard to the diversities and even more inclusive when they deal not with mere legislation but with law making on the constitution making level. The most difficult question with regard to the shared rule procedures concerns decisions cutting categorical conflicts. These are conflicts with an absolute either or position. Any kind of compromise is mostly excluded. At stake are often vital interests of the communities. Categorical conflicts

16 involve also often issues with religious implications e.g. in the field of criminal law etc. As long as the decision on the conflict is not final and as long as it can be changed later with a newly convinced majority the issue is less explosive as in procedures which will be once and for all final such as secession procedures. For such procedures it may be advisable to give all small units the possibility to take decisions autonomously in order to avoid important minorities to be finally overruled by a small majority. In cases of categorical conflicts one should not forget that one can also delegate the issue to the different autonomous federal units if it does not need a solution on the federal level. Thus local units may decide themselves on issues in which their vital interests are involved. Thus religious communities can have their special criminal and family law, decide on religious holidays and provide special educational programs for their children. Of course a categorical conflict can also arise in constitutional conflicts with regard to distribution of powers between the federation and its federal units. According to the new constitutional amendments proposed for federalism reform in Germany federal units may opt out with regard to legislation on environmental protection provide proper which deviate from the federal law.