Negative Conflicts of Competence: Blind Spots of Federalism?
(2026) XII World Congress of Constitutional Law (IACL) “Sustainable constitutionalism: Answers for a changing world” — Location: Bogotá (6.July.2026)
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- This presentation introduces the concept of the negative conflict of competence to describe situations in which several public authorities possess partial responsibility for addressing a public problem, yet none can be clearly identified as responsible for taking effective action. While constitutional law has developed sophisticated mechanisms to resolve positive conflicts of competence—where authorities exceed or encroach upon one another’s powers—it remains less equipped to address situations characterized by collective inaction, fragmented responsibility, and institutional inertia. Drawing primarily on the Belgian federal system, the presentation argues that contemporary policy challenges such as homelessness, climate change, disability inclusion, and the protection of children’s rights increasingly transcend traditional divisions of constitutional competences. These issues frequently require coordinated action by multiple levels of government, while fundamental and social rights impose positive obligations demanding effective public intervention. Yet the fragmentation of powers may create situations in which legal deficiencies persist despite the existence of competent authorities. The presentation proposes four defining elements of a negative conflict of competence: (1) the existence of multiple partially competent authorities; (2) a legally identifiable deficiency resulting from the failure to fulfil a positive legal obligation; (3) indeterminacy regarding which authority bears responsibility for remedying the deficiency; and (4) the inability of existing coordination mechanisms to resolve the problem. Particular attention is paid to the role of courts, which may identify violations of higher legal norms but often lack the institutional capacity or constitutional mandate to allocate responsibility among multiple authorities. The Belgian case illustrates how complex federal arrangements, fragmented competences, and cooperative governance structures can inadvertently facilitate the diffusion of responsibility. Existing mechanisms, including federal loyalty and intergovernmental cooperation, often prove insufficient when the underlying problem is not unlawful action but a failure to act. Rather than offering a definitive solution, this presentation seeks to identify and theorize a recurrent yet underexplored phenomenon in federal systems. By conceptualizing negative conflicts of competence, it aims to open a broader comparative discussion on how federal and multilevel constitutional orders can ensure accountability and the effective fulfilment of positive obligations when responsibility is shared among multiple authorities.
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El Berhoumi, M., & Hancart, S. (2026). Negative Conflicts of Competence: Blind Spots of Federalism? XII World Congress of Constitutional Law (IACL) “Sustainable constitutionalism: Answers for a changing world”, Bogotá. https://hdl.handle.net/2078.5/278614