The concept of paradiplomacy refers to the international
relations conducted by subnational, regional, local or non-central
governments on their own, with a view to promoting their own interests.
This feature appears to be an aspect of the overall process of
globalisation, under which a number of non-state actors plays an
increasingly influential role in the international arena. Regions,
federal states,
provinces and cities seek their way to promote trade, investments,
cooperation and partnership in a long list of subjects and account for a
significant part of today’s cross-borders contacts. This trend raises
new interesting questions concerning
Public International Law and opens a debate on the future of the
state system that has provided the grounds for the international
political order in the last centuries.
Although the term "paradiplomacy" would be casually employed in the
1980s, it was introduced into the academic debate by the Canadian
scholar
Panayotis Soldatos. The American author
Ivo Duchacek further developed the concept and became one of its
main theoreticians. Other current denominations for paradiplomacy and
related concepts are: “multilayered diplomacy”, “substate diplomacy” and
“intermestic affairs” . This latter concept expresses a growing trend to
the internationalization of domestic issues, which takes local and
regional concerns to the centre stage of international affairs.
Paradiplomacy may be performed both in support of and in
complementarity to the central state conducted
diplomacy, or come in conflict or compete with it. Duchacek points
out a distinction between: a) cross-border regional microdiplomacy, b)
transregional microdiplomacy and c) global paradiplomacy, to describe:
a) contacts between non-central units situated across borders in
different states, b) contacts between non-central units without a common
border but situated in neighboring states and c) contacts between units
belonging to states without common borders. A comprising view of the
phenomenon should also consider contacts in a wide range of multilateral
associations of local authorities.
Non-central governments may formally develop official international
relations by: a) sending delegations in official visits; b) signing
agreements,
memoranda of understanding and other instruments; c) participating
in international "local" fora; d) establishing permanent representative
offices or delegations abroad.
Local governments seek international cooperation for economic,
cultural or political reasons. In the economic field, it is known that
most central governments cannot properly assist local communities in all
their needs. They may lack expertise and cadres to fully understand
local realities and to deal with their complexities. Local governments
tend to think that central authorities do not show sufficient interest
in helping them and find themselves perfectly able to pursue their own
interest.
In the cultural field, some regions may seek to promote themselves
internationally as an autonomous cultural entity. This is the case of
the Spanish province of
Catalonia and the Basque Country. Some regions may seek to cooperate
with their diasporas worldwide and try to gain the support of their
nationals abroad in attaining their diplomatic goals.
As to the political aspects, local governments may join efforts
internationally to pressure their central governments into a desired
course of action. This strategy is exemplified in the case of eight
memoranda of understanding signed, in the years 1980, between three
American states and three Canadian provinces to control and combat
acid
rain, as the Reagan Administration and the American Congress could
not reach a consensus on the matter. The cross-borders paradiplomatic
efforts eventually led Washington to amend the
Clean Air Act in 1990 and to sign with Canada, in 1991, the
US/Canada Air Quality Agreement in which both countries agree on a
timetable to reduce acid emissions.
A particular kind of local political activism is called
"protodiplomacy", through which a local government may seek
international support for their emancipation or independence plans. This
is typically the case of the Canadian province of Québec in the sixties,
under the Parti Québécois.
Non-central governments may be allowed to negotiate and sign
agreements with foreign non-central authorities or even with the
government of a foreign state. Conditions can vary largely from a
limited capacity to negotiate with the assistance of their central
authorities to a most complete autonomy based on sovereign
constitutional prerogatives. This can not be the object of the
international law. Only the internal law of the states is to determine
which internal powers are entitled to do so and to which extent. In some
states, the outward relations of their non-central governments is a
constitutional matter directly related to the issue of legal competence.
Federalism and Paradiplomacy
Federative countries ordinarily set apart in their constitutions,
when it comes to the internal division of powers, matters that are
exclusive of the central authority. “National defense”, “currency” and
“external relations” are typically the case. However, as cross-border
contacts become an imperative for sub-national communities, diplomacy is
increasingly becoming a decentralized prerogative. Some states do
formally recognize the stakes their political and administrative units
have in foreign affairs and have, accordingly, set the required legal
basis at a constitutional level. Legal provisions on this matter are
present in the Constitution of the following federations:
-
Argentina
-
Austria
-
Belgium
-
Germany
-
Russian Federation
-
Switzerland
-
United States
Argentina
Since 1994, an amendment to the
Constitución de la Republica allows the
provinces of Argentina (articles 124 and 125) to celebrate treaties
and covenants with “foreign nations” to the effect of the administration
of justice, economic interest or common utility works. Those treaties
are “partial” (non-political) and must not contravene national law,
affect the Nation’s public credit nor go against the external policies
of the Argentine nation. It must also be approved by the
National Congress.
Austria
The
Constitution of Austria restricts the states' capacity to establish
formal external ties to cross-border issues. Article 16 of the reformed
text
[1] (28. June 2002) allows the Länder to conclude treaties with
neighboring states or with its constituent states in matters of their
constitutional competence. The governor of the Land must inform the
federal government from whom he must obtain authorization before
engaging in international negotiations. If the federal government fails
to respond within eight weeks, the request will be deemed to have been
approved. The approval, whether express or tacit, obliges the Federal
President to the agreed text, which must be countersigned by a federal
authority. However, upon request of the federal government, the Länder
must denounce the treaty. If the Land does not dully complies with its
obligation, the federal government overtakes the responsibility.
Paragraphs 4 and 5 of Article 16 regulate further the competencies of
the Länder and of the Federal State in the implementation of treaties.
Belgium
A
Belgium 1993
constitutional revision granted Regions and Communities the right to
develop international co-operation, including the celebration of
treaties, in matters of their exclusive competence (article 167 (3)).
Cultural and educational matters are, according to article 127 (3),
those fields of their exclusive competence. This faculty includes the
drafting of treaties, which are ratified by the French and the Flemish
Community Councils by decree (article 128 (1.1)). Article 130 (4)
provides the same right to the German-speaking Community, and adds
"personal issues" to its fields of competence. Since the Communities
have acquired exclusive right to develop their international relations
on those exclusive matters, the King cannot sign, ratify or denounce
treaties on their behalf. Only the treaties concluded before 18 May 1993
may be denounced by the King. The rigidity of Belgium sphere of
competences raised legal difficulties to the approval of international
treaties dealing with both federal and community's issues. These
treaties are known as traités mixtes, and is the object of a
co-operation agreement between the federal state, the Communities and
the Regions (8 Mars 1994), which provides for a complex mechanism of
shared responsibilities.
Canada
Canadian provinces are among the most active sub-national units on
the international stage. The total amount spent on diplomacy by the ten
Canadian provinces is equal to that of the fifty American states,
despite the fact Canada's population is one ninth the size and the
economy is only one fourteenth as large. Canadian provinces are largely
motivated by economic concerns stemming from the high degree of economic
diversity between regions of the country and because of Canada's
integration into world markets, especially the US market via
NAFTA. Nine of the ten provinces trade more with the United States
than with the rest of Canada. Relations with major trading partners,
most especially the United States, are the most important. At the same
time
Quebec nationalism has motivated the French-speaking province of
Quebec to pursue closer ties with France and the other members of
La francophonie. Furthermore, Canada's constitution is generally
interpreted in a decentralist way, giving the provinces a great deal of
responsibilities.[1]
Germany
The
Basic Law of Germany states in its article 32(3) that "Insofar as
the
Laender have power to legislate, they may, with the consent of the
Federal Government, conclude treaties with foreign states". The federal
government must consult with the Laender, "in sufficient time", before
concluding an international treaty that affects the special interest of
the Land. Article 59(2) requires the consent or participation of the
Bundesrat (the German senate), as one of the "bodies competent in
any specific case", on the approval of Treaties "which regulate the
political relations of the Federation or relate to matters of Federal
legislation". The German Bundesrat has been specially keen to assuring
the Laender's participation on the European decision-making process.
Russian Federation
Russia,
the world's most extensive state shows a tradition of conveying the
weight of its territorial units to foster external policy objectives.
The
Soviet Union is the only country ever to have two of its Republics (Ukrainian
SSR and
Byelorussian SSR) recognized as member states in the
United Nations, which lasted from 1945 to 1991. That situation was
not to be reflected in constitutional law until the
1977 Soviet Constitution stipulated that "A Union Republic has the
right to enter into relations with other states, conclude treaties with
them, exchange diplomatic and consular representatives, and take part in
the work of international organizations" (article 80). The new text went
as far as to formally declare that "Each Union Republic shall retain the
right freely to secede from the USSR" (Article 72). The 1993
Constitution of the Russian Federation does not explicitly confer
its non-central authorities the same rights, but one can see from
article 72 that "coordination of the international and external economic
relations of the subjects of the Russian Federation" (n) belongs to the
joint jurisdiction of the Russian Federation and the subjects of the
Russian Federation, and that, according to paragraph 2, this provision
"shall equally apply to the republics, territories, regions, federal
cities, the autonomous region and autonomous areas".
Switzerland
Article 54 of the
Swiss Constitution states that foreign relations are a federal
matter. However, the cantons shall be considered, having they a say in
the preparation of decisions of foreign policy concerning their
competencies or their essential interests, whenever they are affected,
and participate in international negotiations as appropriate, as stated
in Article 55. The cantons may also conclude treaties with foreign
countries within the domain relevant to their competencies, provided
they are not contrary to the law and interests of the Federation nor to
the right of other cantons. They may deal directly with subordinated
foreign authorities, but treaties concluded with foreign nations can
only be signed by the central authorities (Article 56). Article 147
reinforces the cantons' role in Swiss foreign affairs by stating that
"the cantons (...) are heard in the course of the preparation of
important decrees and other projects of substantial impact, and on
important international treaties". Provisions concerning mandatory and
optional referenda concerning the entry of Switzerland into
organizations for collective security, into supranational communities or
the implementation of some international treaties (Articles 140, 141 and
141a) may also imply cantonal participation if such referendum is
proposed by eight cantons.
United States
Having established that the power to make treaties and conduct
external affairs belong to the
President and the
Congress, the first federal constitution sets an array of
prohibitions to the States in Section 10 of
Article I. The
States shall not enter into any
Treaty,
Alliance, or
Confederation etc. However, the third paragraph of the same Section
10 opens the possibility for the States to engage in international
affairs by stating that no State shall, without the Consent of Congress,
(...) enter into any Agreement or Compact with another State, or with a
foreign Power, or engage in War, unless actually invaded, or in such
imminent Danger as will not admit of delay. A double negation ("no
State shall, without the Consent of Congress") implies that they
are actually allowed to "compact with a foreign Power", as long as the
Congress would sanction those acts. This control was meant to assure
that international commitments contracted by the States were not against
the Federal Law. In more recent times, the huge volume of international
business conducted by State authorities - acting in present days 50
States - cannot come under congressional control in practical terms.
Even though an unlawful act on this domain may be overruled by the
Congress, experience has shown that international paradiplomatic affairs
reflect a legitimate interest of local communities and that the States
authorities would hardly overstep their legal competencies.