STEVEN VERGAUWEN
Ambassador and former Director of Vlaamse Volksbeweging.
How many times have we heard from Spanish sources that western Basques “enjoy the highest and widest level of autonomy across all Europe”? The wretched statement has been repeated so frequently that most of us have come to believe it. Still it does not hold water. Mr. Steven Vergauwen, Flemish ambassador of Vlaamse Volksbeweging, highlights in this article the wide and exclusive powers Flanders holds in foreign affairs, a set of attributions we can only dream of. Among others, Flanders enjoys direct participation in the European Council of Ministers when it comes to discussions on a number of issues. It would be better for Basque nationalist politicians in the Iberian Basque Country to look up to Flanders….
Flanders can pursue international activities in the domains it holds attributions, so it is empowered to sign treaties with states and other territories. It should be noted that Flanders enjoys exclusive attributions in the domains of language and education, health, foreign trade, economy, agriculture, energy, housing policies, science and innovation, etc. Flanders also enjoys foreign representatives across a number of states, like Spain, who pursue international ambassador tasks.
Flemish ministers directly participate in the European Councils of Ministers in relation to education and culture, for example. Could we ever imagine something similar with Basque Government ministers?
ATTRIBUTIONS OF FLANDERS IN FOREIGN AFFAIRS
Flanders agrees fully-fledged international treaties, organises diplomatic and economic services abroad, and manages its own foreign policy budget. Flanders’ foreign policy takes shape through the Department of Foreign Affairs and is implemented in cooperation with the other departments and agencies.
Flanders has had a number of international powers since 1993, according to the principle “in foro interno, in foro externo”. This implies that it can act on the international plane for all matters for which it is responsible within the Belgian constitutional framework. To do so, it can make use of the following instruments:
- the constitutional right to concluded treaties that are internationally binding
- the right to appoint diplomatic representatives
- the granting of subsidies to organizations which support its foreign policy
- its agency Flanders Investment and Trade
- its agency Visit Flanders
Within the Government of Flanders, the logic of the principle “in foro interno, in foro externo” has been applied as well. This means that each minister has the power to decide on European and international initiatives within his own responsibilities. The same holds true for the different departments and agencies of the Government. Hence, there’s a need for a more coherent approach. The Ministry of Foreign Affairs optimises the international policy coordination within the Government of Flanders and is the first point of contact for foreign diplomatic representations.
Legal Context and Background: Juxtaposition, not Hierarchy
Flanders enjoys considerable powers at the international level.
The Belgian Constitution provides for a juxtaposition, rather than a hierarchy, between the federal government and the subfederal governments. The Constitutional Amendment of 1993 includes the principle of “in foro interno, in foro externo” (art. 167 Belgian Constitution). In this context, it means that all governments have control over domestic issues, and over foreign issues as well. Considering the substantial shifts in power that have been ceded to the federated states since 1993, the impact of this principle cannot be overstated. Flanders acts internationally in all areas for which it has internal jurisdiction such as economy, employment, the environment, agriculture, mobility, public works, education, culture and health policy. Flanders has the constitutional right to conclude internationally-binding treaties in these areas, and can appoint diplomatic representatives abroad. This authority extends to the Government of Flanders. Every minister is responsible for domestic, European and for international initiatives falling within their ministerial remit. The same applies to departments and agencies. The Department of Foreign Affairs, for example, monitors international policy coherence and is responsible for the coordination between the various policy areas. It is also the first point of contact for foreign embassies and diplomatic representations.
Treaty Law in Practice
Flanders concludes treaties with third countries or with international institutions.
An overview of the hundreds of treaties with Flanders (with a convenient search filter per country and theme) is available on the website of the Department of Foreign Affairs: https://www.fdfa.be/ en/treaties-and-mous
A few examples:
Treaty of the Council of Europe concerning the protection of children against sexual exploitation and sexual abuse;
- the Scheldt treaties;
- Agreement between the Flemish Community and the Netherlands regarding the accreditation of tertiary educational degree programmes;
- Amendment to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal;
- Treaties on cultural cooperation with third countries;
- Double taxation treaties. Concluding treaties on matters where federated states have exclusive competence (‘exclusive treaties’) requires formal disclosure to the federal government. This is done by means of a letter from the Flemish minister for Foreign Policy to the federal minister of Foreign Affairs.
‘Mixed treaties’ relate to matters for which the federal government and the federated states are both partly competent. The 1994 Cooperation Agreement between the federal government, the communities and the regions sets out detailed rules for the conclusion of mixed treaties. The Inter-Ministerial Conference on Foreign Affairs (ICBB) is a forum for consultation on foreign policy between the federal level and the federated states. This body determines the mixed nature of the convention, based on advice from the Working Group on Mixed Treaties.
The conclusion of treaties involves the following steps: negotiation, signing, questioning of the advisory councils concerned and Council of State, parliamentary approval and ratification and promulgation. Approval by the Government of Flanders is required at every step of this process. Treaties are adopted into Flemish law by means of a decree of endorsement in the Flemish Parliament. EU treaties, such as the EU-Canada [CETA] Free Trade Agreement, are also discussed and approved in the Flemish Parliament. As a party to a number of human rights treaties, Flanders regularly reports on compliance with these treaties in our domestic policy.
Intrafederal Cooperation Agreements
Flanders also has full powers at EU level. The Maastricht Treaty, which came into force in 1992, empowered Flemish ministers to participate in the EU Council of Ministers on issues such as the environment, education, culture or fisheries. In a Cooperation Agreement of 1994 the federal state, the communities and the regions confirmed the process and authorisations for representation at the EU level. The Agreement details six categories for representation at the EU Council of Ministers: from exclusive federal representation (e.g. council configuration for justice and home affairs) to exclusive representation by the federated states (e.g. education or culture councils), with a number of gradations in between. However, this EU Cooperation Agreement has now become outdated. It urgently requires modifications that reflect the significant institutional changes in Belgium and in Europe spanning the last 25 years, particularly since the Treaty of Lisbon (2009) and the sixth Belgian state reform of 2011. In addition to the EU Cooperation Agreement, there are similar intrafederal cooperation agreements regulating accords between the federal government and the federated states. These pertain to diplomatic representatives of the federated states, representation in international organisations, how proceedings are conducted, and attracting foreign investment .
MORE INFORMATION on the policy framework of the Department of Foreign Affairs (regulations, cooperation agreements, strategy notes, the coalition agreement and policy notes) is available at: https://www.fdfa.be/en/policyframework
Anyone interested, for further reading, visit: www.fdfa.be