Year XXXVIII, Number 1, March 2025

Timothy Namitego
Lawyer and project officer at Justice Access Point (JAP). Advocate of the High Court of Uganda

Federalism provides a fundamental framework for protecting human rights by guaranteeing a balance of power and a consistent approach to their protection. A strong federal government is required to preserve individual rights from state interference, serving as a central authority to prevent localized abuses or discriminatory practices. It encourages the universal implementation of human rights throughout all regions, ensuring that every individual receives equal protection regardless of their geographical location. Federalism prevents dictatorship and concentration of authority, which could lead to breaches of fundamental rights, by introducing separation of powers and checks and balances. Furthermore, it limits state power, preventing individual states from engaging in actions that violate or undermine human rights. In this approach, federalism not only brings disparate regions together, but it also serves as a safeguard against challenges to individual liberty and justice.

Federalism as a Mechanism for Human Rights Protection

Federalism is a decentralized structure that respects human rights by ensuring access, adaptation, and accountability. It brings governance closer to the people, allowing them to interact directly with authorities to address specific concerns. This proximity promotes empowerment and inclusivity, making human rights a reality. Federalism enables different policies that are suited to cultural, social, and economic situations, fostering equity and relevance. The system's checks and balances prevent power concentration, and numerous layers of oversight are in place to prevent abuse. Federalism strengthens accountability and the structural integrity of human rights protections by spreading authority across the federal and state levels.

Treaty Implementation

International human rights instruments have been more prescriptive when considering the ‘structures and processes that states should set up domestically in order to implement treaties’.^[i] The 2006 Convention on the Rights of Persons with Disabilities (CRPD) constitutes a decisive development in this domestic institutionalisation.^[ii] Its Article 33(1) stipulates that State Parties shall establish focal points within the government to ensure the implementation of the Convention, and consider setting-up coordination mechanisms ‘to facilitate related action in different sectors and at different levels’.^[iii] While such guidance accommodates federal States by remaining sufficiently flexible, none of it has specifically analysed or issued recommendations tailored to the challenges of federal States.^[iv] The internal organisation of the State cannot be used as a justification in the event of a disregard of international law obligations.^[v] For example Switzerland recognised this with respect to the Istanbul Convention, stating that the federal State is responsible for executing international law obligations – even those that fall within the competencies of the cantons.^[vi] Human rights treaties’ implementation is not a rigid one-way process. It has long been recognised that some rights, in particular economic, social, and cultural ones, are subjected to progressive realisation.^[vii] Risse, Ropp, and Sikkink have argued that domestic human rights compliance is more difficult to reach when it requires collaboration between several decentralised actors.^[viii]

Human rights treaties often involve a ‘diversity of local implementation practices’.^[ix]

Diversity

One of the main benefits of federalism is that it provides a framework for the recognition of ethnic, religious, linguistic or other cultural communities, reflecting their desire to be recognized as a people with a distinct identity and particular interests. By guaranteeing substantial autonomy to such groups, federalism can allow them to exercise partial self-government through state, provincial or regional institutions while still sharing certain functions with other communities through federal or national institutions. By satisfying demands for autonomy and recognition, a federal constitution may protect minorities, prevent conflict, increase the legitimacy of democratic institutions and reduce pressure for secession.^[x]

However, federalism (at least as it has traditionally been understood and practiced) is appropriate only where these communities are territorially concentrated; if ethnic, religious or linguistic communities are not concentrated in particular geographical areas, other ways of combining self-rule with shared rule might be preferable (see section 10 of this Primer on possible alternatives to federalism). Federalism is therefore ‘suitable for some countries, but not all’.^[xi]

Proponents of federal power-sharing usually work on the assumption that territorial autonomy allows actors of different tiers of government to better respect and protect human rights. They are convinced that federalism backs constitutionalism, democracy and good governance and see autonomy rights not as a hindrance to the fulfilment of individual rights and freedoms but as a useful contribution to it. However, human rights organizations and advocates rarely respond positively to the advances made by federalists. As they associate collective autonomy with different human rights standards for citizens of the same state, proponents of human rights generally look skeptically at autonomy arrangements. The federal affection for human rights is thus unrequited. Federal scholars and international organizations promoting decentralisation and other forms of power-sharing keep praising federalism as a mechanism able to increase the state’s legitimacy and efficiency, as well as to strengthen its capacity to implement minority and human rights. Human rights experts and international organizations mandated to support human rights implementation, however, are immune to such seduction and advocate for uniform approaches. They insist on the obligation to respect and protect all human beings equally, irrespective of their group affiliation or territory of residence.^[xii]

At first sight, it seems like there are structural limits regarding the compatibility of human rights and federalism as both are trying to promote different agendas.^[xiii] While international human rights bodies are dedicated to protecting and promoting universal human rights norms, the federal spirit embodies a desire to enhance subnational autonomy.^[xiv] At second glance, however, numerous commonalities and chances for cooperation appear.

First, human rights and federalism aim at compatible and mutually reinforcing objectives. Both intend to improve governance and to protect diversity. Insofar as federal arrangements constrain power by establishing vertical checks and balances, they contribute to preventing power abuses and thus, similar to human rights, serve to limit state power and to strengthen rights and freedoms.^[xv] Constrained power is more likely to respect and protect human rights in particular, civil and political rights than uncontrolled power.

Second, in states characterised by ethnic, religious or linguistic diversity, sharing power between groups and regions can be a requirement of international law. To recommend limiting or abandoning federal systems in such a context, therefore, makes no sense, either from a federal or from a human rights perspective. Given the generally negative approach of international human rights bodies towards federalism and the various reasons for misunderstandings and distrust, it seems appropriate to recall that the full implementation of human rights often requires domestic power-sharing arrangements. In such situations, federalism and human rights are clearly friends rather than foes.^[xvi]

Conclusion

While federalism may create worries about state sovereignty and the possibility of inefficiencies in fulfilling human rights, these issues can be handled via careful balancing and good administration. The tension between federal power and state sovereignty can be reduced by explicitly defining responsibilities, allowing states to keep autonomy in specific areas while the federal government retains responsibility to guarantee fundamental rights. This equilibrium allows for the preservation of local variety while adhering to global human rights principles. Concerns concerning inefficiencies in implementation can be addressed by coordination between the federal and state governments, streamlined systems, and strong supervision mechanisms. A federal structure that promotes cooperation and accountability can effectively implement human rights while respecting state sovereignty and avoiding bureaucratic barriers.

Federalism gives both an opportunity and a difficulty in the quest to advance human rights. It provides a framework for combining varied regional demands with the imperative to protect universal rights, allowing for innovation and localized solutions while upholding national norms of justice and equality. However, it necessitates careful maneuvering through complexity such as overlapping authorities, potential inefficiencies, and disputes between federal and state authority. To realize its full potential, officials, scholars, and citizens must collaborate to address these difficulties by encouraging dialogue, developing inclusive policies, and ensuring accountability at all levels of government. By accepting the promise of federalism and tackling its complexities, we can construct a system that not only protects but actively promotes the dignity and rights of all individuals.

[i] Jensen, Lagoutte and Lorion (n 2) 166.

[ii] ibid.

[iii] Article 33 of the 2006 Convention on the Rights of Persons with Disabilities (CRPD).

[iv] Sébastien Lorion, ‘A Model for National Human Rights Systems? New Governance and the Convention on the Rights of Persons with Disabilities’ (2019) 37 Nordic Journal of Human Rights 234, 243.

[v] Article 27 of the 1969 Vienna Convention on the Law of Treaties.

[vi] BFEG, Concept de mise en œuvre (Bern, 2018) 11.

[vii] Governmental human rights focal points in federal contexts: The implementation of the Istanbul Convention in Switzerland as a case study, https://journals.sagepub.com/doi/full/10.1177/09240519211016947#body-ref-fn12-09240519211016947

[viii] Thomas Risse, Stephen C Ropp and Kathryn Sikkink, The persistent power of human rights: From commitment to compliance (CUP 2013).

[ix] Mikael Rask Madsen and Gert Verschraegen, ‘Making Human Rights Intelligible: An Introduction to Sociology of Human Rights’ in Mikael Rask Madsen and Gert Verschraegen (eds), Making Human Rights Intelligible: Towards a Sociology of Human Rights (Hart Publishing 2013) 3.

[x] Federalism, International IDEA Constitution-Building Primer

[xi] Anderson, G., Creation of Constituent Units in Federal Systems, Center for Constitutional Transitions Law Working Paper, 2014 –, Federalism: An Introduction (Oxford: Oxford University Press, 2008)

[xii] Eva Maria Belser, The Principle of Equality in Diverse States, Chapter 3, Pgs. 62–98.

[xiii] Cf. Wyttenbach, Umsetzung von Menschenrechtsübereinkommen in Bundesstaaten, 250 et seq.

[xiv] Steytler, “The Constitutional Conversation Between the Federal Structure and a Bill of Rights”, 3; cf. also Kincaid, “Values and Value Tradeoffs in Federalism”, who draws a similar line between individual and communitarian liberty, 250.

[xv] Wyttenbach, Umsetzung von Menschenrechtsübereinkommen in Bundesstaaten, 250.

[xvi] Eva Maria Belser, The Principle of Equality in Diverse States, Chapter 3, Pgs. 62–98