ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

117 FEDERALISM OF RIGHTS:
A COMPARISON
The general aim of the panel is both to raise conceptual
issues and to pursue a number of case studies
regarding the interplay between federal structure and
rights in Europe and the United States. We suggest
federalism theory as a shared alphabet that allows
transatlantic comparisons to enrich our knowledge
of concrete arguments involved in current salient
debates on rights that are unfolding on opposite
shores of the Atlantic. The paper givers are both European
and American scholars, the case studies we
look at are gender quotas, gay marriage and data
privacy. We suggest a novel conceptual framework
that stands out from other comparative work on the
United States and the European Union where the
analyses are usually historically oriented, the general
assumption being that the EU, as a younger entity,
should learn from the US experience. Instead, we
demonstrate that regarding the responses of the law
in sensitive areas there is space for mutual learning
in the search for solutions.
Participants Thomas Kleinlein
Bilyana Petkova
Brian Soucek
Julie Suk
Yonatan Tesfaye Fessha
Name of Chair Andreas Føllesdal and
Pietro Faraguna
Room UL9 210
Thomas Kleinlein and Bilyana Petkova: Federalism
All the Way
This paper fathoms the capacities of federalism
theory as a common framework of analysis for the
fundamental rights architecture and dynamics of centralization
and decentralization in the U.S. and the
EU. We suggest a novel conceptual framework and
demonstrate that regarding the responses of the law
in sensitive areas such as gender quotas, marriage
equality and privacy there is space for mutual learning
in the search for working solutions. We introduce the
theoretical toolkit of the U.S. school of “new federalism”,
this new strand of federalism theory focuses on
decentralization as promoting “voice not exit, integration
not autonomy, and interdependence not independence”.
Federalism, thus understood, still justifies
otherness but no longer defines strict borders. Even
if sovereignty might not necessarily be a stand-alone
value, we show how states, state institutions and localities
in a federated system matter for democracy
in a very tangible way.
Brian Soucek: Marriage and Morality: Putting
the U.S. and Europe in Dialogue
Same-sex marriage cases, both in the United
States and Europe, have often pitted rights against
state autonomy, and religious and moral beliefs against
equality norms. Where U.S. courts and the ECtHR have
diverged furthest is in their willingness to consider
moral arguments made by states opposed to samesex
partnerships. Treating these as illegitimate, as the
U.S. has done, paved the way for the nationalization of
same-sex marriage in 2015. But it also caused courts to
sidestep the most important concerns voiced on both
sides of the debate – not just opponents’ moral arguments,
but also gay rights advocates’ equality claims.
Further, by refusing to hear the one thing that made
states meaningfully different on the issue of marriage,
U.S. courts made federalism largely irrelevant. Recent
battles over same-sex marriage in Europe show how
this dialogue might have been – and could still be –
conducted differently.
Julie Suk: Gender Quotas and Federalism in Europe
and the United States
In Europe, many national legislatures have passed
statutes imposing gender parity in elected office and/or
corporate boards of directors in the last twenty years.
The European Union is now considering a proposed
directive to impose corporate board gender quotas on
all member states. The election laws of many states
in the United States also require gender parity in the
leadership of state political party committees, but
these American gender quotas have largely escaped
notice in the legal literature. This article highlights the
dynamics by which gender quotas, and the law that
constrains them, are creatures of federalism.
Yonatan Tesfaye Fessha: Territorial management
of ethnic diversity and internal minorities
in two African federations
The provision of self-government within a territorial
framework has provided an opportunity to locally
manage fault lines and empower communities that
were marginalized in the past. It has not been, however,
without challenges. As the experience of Ethiopia
and Nigeria illustrates, the territorial structure of
federalism might have helped to avoid large scale
ethnic conflicts but the practical impossibility of creating
an ethnically pure subnational unit has brought
new tension: the majority-minority tension at the level
of the constituent units. Both in Nigeria and Ethiopia,
groups and individuals that do not belong to the regionally
empowered group, usually known as internal
minorities, face discrimination and marginalization
from subnational authorities and are often treated as
second-class citizens. The focus of this paper is to
examine how the federal designs of the two countries
have responded to the challenges of accommodating
internal minorities.
Concurring panels 166