Beyond A One-Dimensional State: An Emerging Right To Autonomy? (Raoul Wallenberg Institute Human Rights Library)

BEYOND A ONE-DIMENSIONAL STATE: AN EMERGING RIGHT TO AUTONOMY?

THE RAOUL WALLENBERG INSTITUTE HUMAN RIGHTS LIBRARY VOLUME 19

BEYOND A ONE-DIMENSIONAL STATE: AN EMERGING RIGHT TO AUTONOMY?

Edited by ZELIM A. SKURBATY

Raoul Wallenberg Institute of Human Rights and Humanitarian Law and The Danish INSTITUTE for Human Rights

MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON 2005

A C.I.P. Catalogue record for this book is available from the Library of Congress.

Printed on acid-free paper.

ISBN 90-04-14204-5 © Copyright 2005 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. Brill Academic Publishers incorporates the imprint Martinus Nijhoff Publishers. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change.

Printed and bound in The Netherlands

TO ALL THOSE WHOSE LIFE IS A STATEMENT OF THE FACT THAT AUTONOMY MATTERS

IF YOU TAKE GOOD THINGS FOR GRANTED YOU MIGHT BE LOOSING THEM AGAIN FOR EVERY RIGHT THAT YOU CHERISH YOU HAVE A DUTY, WHICH YOU MUST FULFIL FOR EVERY HOPE YOU ENTERTAIN YOU HAVE A TASK YOU MUST PERFORM FOR EVERY PRIVILEGE YOU WOULD PRESERVE YOU MUST SACRIFICE A COMFORT FREEDOM WILL ALWAYS CARRY A PRICE OF RESPONSIBILITY AND THE JUST REWARDS OF YOUR OWN CHOICES

Denis Waitley. The Empires of the Mind. The inscription on the Statue of Responsibility (suggested by Denis Waitley), which is supposed to be erected on the American West Coast (San Francisco), as a ‘Responsibility’ counterpart to the ‘Freedom’, personified by the Statue of Liberty on the East Coast (New York).

TABLE OF CONTENTS Acknowledgements .......................................................................................... Biographical Notes.......................................................................................... Prolegomenon: Prefatory Words by Max van der Stoel, Gudmundur Alfredsson and Morten Kjærum ......................................................... Abbreviations .................................................................................................. Introduction by Zelim A. Skurbaty ...............................................................

xi xiii xix xxvii xxxi

PART I GENERAL ISSUES: CROSS-DISCIPLINARY APPRAISAL OF AUTONOMY Autonomy as a Participatory Right in the Modern Democratic State Public Participation, Autonomy and Minorities Yash Ghai .............................................................................................. Legal Appraisal of Autonomy Territorial Autonomy and International Stability: Pros and Cons from the Viewpoint of International Law Hans-Joachim Heintze ....................................................................... Collective & Individual set Back to Back: Autonomy and the Interplay of Individual and Collective Dimensions in Article 27 of the UN International Covenant on Civil and Political Rights Zelim A. Skurbaty ................................................................................. Problems Related to the Economic Viability of Autonomous Arrangements Centralism and Fiscal Federalism Gisela Färber ...................................................................................... Social Structure, Social Capital and Institutional Agreement: The TrentinoAlto Adige Model Antonio M. Chiesi ............................................................................... Local Economic and Community Development as an Aspect of the Reconstruction of South-East Europe: Bringing the Local State Back In Milford Bateman ................................................................................

3

47

63

83

103

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PART II THEORETICAL JUSTIFICATIONS Conceptual Issues Pertaining to Autonomy Territorial Autonomy: Permanent Solution or Step toward Secession? Hurst Hannum ...................................................................................... The Role of Autonomy in State-Nation Dialectic Johan Galtung ........................................................................................ Ambiguities in and Clarifications of the Concept of Autonomy Matti Wiberg .......................................................................................... Meta-Legal and Philosophical Dimensions of Autonomy Paradoxes of Autonomy: Tensions, Traps and Possibilities Thomas W. Simon ..................................................................................

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153 161 177

191

TABLE OF CONTENTS Autonomy and Cultural Rights The Argument of Cultural Disadvantage Juha Räikkä ........................................................................................... The Right of a People to Exercise their Culture – A Scandinavian Model Isi Foighel ...............................................................................................

211 231

PART III CROSS-BORDER COOPERATION, INTERNATIONAL MONITORING AND IMPLEMENTATION International Guarantees of Autonomy Autonomy (International Guarantees of Autonomy) Yoram Dinstein ...................................................................................... International Criminal Law: Protection of Minority Rights Lyal S. Sunga ......................................................................................... Autonomy: The Problem of Irredentism and Cross-Border Cooperation Cross-Border Cooperation as an Indicator for Institutional Evolution of Autonomy: The Case of Trentino-South Tyrol Francesco Palermo and Jens Woelk ....................................................

243 255

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Autonomy, Participation and Minority Rights Participation and the Council of Europe’s Framework Convention for the Protection of National Minorities (FCNM) Alan Phillips ........................................................................................... Autonomy and the Effective Participation of Minorities in Public Life: Developments in the OSCE John Packer .........................................................................................

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Autonomy and Indigenous People Indigenous Rights and the Promise of a Limited Autonomy Model Darren Hawkins ..................................................................................... The Question of Indigenous Autonomy in Latin America José Bengoa ............................................................................................

337

321

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PART IV NATIONAL AND COMPARATIVE CASE STUDIES Autonomy, Minorities and Self-Determination The Protection of the Rights of Minorities by Means of Autonomy: The Cases of the Åland and Kosovo Markku Suksi .........................................................................................

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TABLE OF CONTENTS Failed Experiences with Autonomy The Autonomy of Eritrea (1952-62): Learning from the Failed Experience Eyassu Gayim ......................................................................................... Autonomy in the Countries of Transition A Combined Approach to Autonomy: Estonian Experience Aleksei Semjonov ................................................................................... Autonomy of Gagauzia: A Post-Soviet Experience Priit Järve ............................................................................................... Autonomy and Conflict Resolution Autonomy: The Danish-German Border Region Sten Harck .............................................................................................. Continued Challenges, Post-Settlement, to the Cyprus Conundrum Tim Potier ............................................................................................... Strategies of Ethnic Conflict Resolution: The Trentino-South Tyrol Case and the Balkans Paolo Foradori and Riccardo Scartezzini ............................................ National and Regional Experiments with Autonomous Arrangements Experiments with Autonomy in the United Kingdom since 1998 Patricia Leopold ..................................................................................... The Status of Autonomous Territories in International Organizations: Experiences in Nordic and Continental European Co-operation Elisabeth Nauclér ................................................................................... Minority Rights and Forms of Autonomy in South Asia Ranabir Samaddar ................................................................................

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421 429

457 473

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525 541

Summary Conclusions Is There an Emerging Right to Autonomy? Summary Reflections, Conclusions and Recommendations Zelim A. Skurbaty .................................................................................

565

Index ...............................................................................................................

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ACKNOWLEDGEMENTS The attitude of gratitude is a prevailing sentiment at this stage of sending the volume to the Publisher and I owe it to the people and organizations whose help proved to be invaluable in making this publication project a reality. First, I want to express my gratitude to my assistant Frederik Rosen, who has been involved in the project from day one and had been doing all kinds of work within and beyond the call of duty, including editing some texts. It is no small feat given the fact that he had many other commitments and never got any remuneration for his work. Special mention should be made of two Directors of the Scandinavian human rights institutions that played pivotal role in shepherding this volume to its publication phase – Gudmundur Alfredsson, the Director of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (Lund Sweden) and Morten Kjaerum, the Director of the (then) Danish Center for Human Rights (Copenhagen). Gudmundur Alfredsson has been instrumental at all stages of the preparation of the volume: giving advice on all kinds of matters, discussing the content of submissions, etc., and, in addition, he took it upon himself to take care of all logistics concerning negotiations with the Publisher. Morten Kaerum has also been supportive all along by providing the venue for the joint autonomy seminar with the United Nations Working Group on Minorities and making contributions of substance during its course. Given the difficulties the Danish Center for Human Rights had been undergoing at the time, this support and contribution acquire special meaning and significance. My heartfelt thanks go to both of them. Asbjørn Eide, the Chairman of the UN Working on Minorities, not only participated in and contributed to the Seminar, but gave the publishing project unreserved support and helped to conceptualize the book’s approach resonating with the credo of the Working Group, namely: ‘the examination of possible solutions to problems involving minorities, including the promotion of mutual understanding between and among minorities and governments’. Professor Tom Hadden from the Centre for International and Comparative Human Rights Law, the Queen’s University of Belfast should be credited for the preparation of the report from the Copenhagen Seminar. The report was put on the agenda of the 8th Annual Session of the UN Working Group on Minorities, widely discussed and thus - set the stage for the preparation of the present publication. Many thanks to Jens Woelk, a researcher from the University of Trento, who brought to the publication scene a number of relevant contributions from the International Conference ‘Organising Cohabitation’ (Trento, January 2001). The authorities of the Autonomous Region of Trentino-South Tyrol, that sponsored the conference, were also very cooperative and helpful in giving the green light for the inclusion of these contributions to this volume. John Packer, Director of the Office of the OSCE High Commissioner on National Minorities, also took interest in the publication project and provided useful insights, suggestions and assistance. And one can't but be grateful to the former xi

ACKNOWLEDGEMENTS High Commissioner on National Minorities, the distinguished Max van der Stoel, who honoured this publication with his words of wisdom and endorsement in the Prolegomenon. My thanks also go to Lindy Melman (Brill Academic Publishers, the Netherlands), Carin Laurin (Publications Officer, Raoul Wallenberg Institute), Christopher Cassetta and Miles Hogan for all kinds of editorial and practical help related to putting the publication through. As already mentioned, publication of this book had been strongly supported by the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund, Sweden, which is only fitting given the prominent role the Institute plays in the promotion of international human and minority rights. And it is no coincidence that one of the most frequently referred documents in the field of autonomy and minority rights – the 1999 Lund Recommendations on the Effective Participation of National Minorities in Public Life – was partly prepared and given life in this institution.1 And – true to form – many colleagues from the Raoul Wallenberg Institute of Human Rights and Humanitarian Law has lent a helping hand during preparation of this book, and I can’t but be grateful for that. Finally, I would like to mention a fact whose significance exceeds any passing considerations. This book on autonomy bears on its cover the portrait of Raoul Wallenberg. I consider this rather symbolic in that the person who saved so many lives at the price of his own, has expanded ad infinitum – even if unwittingly – the limits of personal and group autonomy. His tragic fate, sealed in the chambers of the KGB in the late 1940s, set in motion the processes that have changed the intellectual milieu of our epoch forever: it is now accepted, as an immutable imperative, that trespassing personal and group autonomy – defined in human rights terms – is an outrage, something that the international community will not put up with under any conditions or pretexts: it paid too high a price for that. We should send our belated thanks to the person who paid in full for this tidal shift in our perception of what the deep meaning of personal and group autonomy is.

1

As Max Van der Stoel mentions in the Prolegomenon, the origins of Lund Recommendations go back to the inter-governmental conference ‘Governance and Participation: Integrating Diversity’ held in Locarno in October 1988 under the auspices of OSCE. This conference gave rise to a process of consultations with a number of independent experts, which eventually resulted in the ‘Lund Recommendations on the Effective Participation of National Minorities in Public Life’ (September 1999).

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BIOGRAPHICAL NOTES Milford Bateman Milford Bateman works at Directorate for Fiscal, Financial and Enterprise Affairs, OECD, Paris José Bengoa José Bengoa is Professor of International Law, University of Santiago, Chile; also a Member of the UN Working Group on Minorities Antonio M. Chiesi Antonio M. Chiesi is Professor of Methodology of the Social Sciences and Director of the Department of Sociology and Social Research at the University of Trento. His recent publications include: Il bilancio sociale, (with A Martinelli and M. Pellegatta, Il sole 24 ore Editore, 2000); L’analisi dei reticoli, (F.Angeli, Milano, 1999); Recent Social Trends in Italy, 1960-1995, (with A. Martinelli and S. Stefanizzi, McGill Queen’s, Montreal 1999); Lavori e professioni (La Nuova Italia Scientifica, 1997). Yoram Dinstein Yoram Dinstein is Professor of International Law, Tel Aviv University (Israel); Humboldt Fellow, Max Planck Institute, Heidelberg (Germany); Member, Institut de Droit International. Paolo Foradori Paolo Foradori is a researcher at University of Bologna, Department of Social Sciences Gisela Färber Deutsche Hochschule für Verwaltungswissenschaften, Speyer Isi Foighel Isi Foighel is Dr. juris Professor emeritus, University of Copenhagen (1964–97), Chairman of the Home Rule Commission for Greenland (1975–1978). Judge at the European Court of Human Rights (1988–98). Senior-researcher at the Danish Center of Human Rights (1998–) Johan Galtung Johan Galtung is dr hc mult, Professor of Peace Studies, American, Ritsumeikan, Troms, Witten/Herdecke and European Peace Universities; Director, TRANSCEND: A Peace and Development Network. He is a founder of International Peace Research Institute (1959). Eyassu Gayim Eyassu Gayim is a Senior Researcher, The Eric Castrén Institute of International Law and Human Rights, University of Helsinki.

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BIOGRAPHICAL NOTES Yash Ghai Yash Ghai is the Sir Y.K.Rao Professor of Public Law at the University of Hong kong. His most recent books are Hong Kong’s New Constitutional Order (1998) and Hong Kong’s Constitutional Debate (2000). He has also been a constitutional and legal adviser to several governments, political parties international organisations and non-governmental organisations. Hurst Hannum Hurst Hannum is Professor of International Law and Co-Director, Center for Human Rights & Conflict Resolution, The Fletcher School of Law and Diplomacy, Tufts University. He is author of the book Autonomy, Sovereignty, and SelfDetermination: The Accommodation of Conflicting Rights, Philadelphia, PA: University of Pennsylvania Press. Sten Harck Dr. Sten Harck is a practising lawyer at the law firm LSH in Copenhagen, where he is working in the areas of public law and EU-law. Before joining the law firm he was a research scholar and assistant professor in EU-law, Public International Law and International Human Rights at the Faculty of Law, University of Copenhagen. He obtained his Ph.D. on a thesis analysing the European Framework Convention on the Protection of National Minorities. Currently, he is finishing a master thesis at the Ludwig-Maximilians-Universität in Munich, Germany, concerning the interaction between patent law and human rights. Darren Hawkins Darren Hawkins is an asistant professor of political science at Brigham Young University. He has just published his book, International Human Rights and Authoritarian Rule in Chile. Recent articles have appeared in Comparative Politics and Political Science Quarterly, and he has a forthcoming article in Global Governance. He is currently at work on the political history of international human rights norms and their evolution from statements of principle to laws that can be internationally enforced. Hans-Joachim Heintze Hans-Joachim Heintze is an Associate Professor of International Law at the Institute of International Law of Peace and Armed Conflict, University of the Ruhr, Bochum (Germany). President of the International Association for the Study of the World Refugee Problem (AWR). Research topics: Human Rights Law, Minority Law, Refugee Law, International Humanitarian Law. Co-author of the leading German Textbook Voelkerrecht by Knut Ipsen; Co-author of the Lund Recommendations of the OSCE High Commissioner on National Minorities and of Markku Suksi’s Autonomy: Applications and Implications, Kluwer 1998. Participant of the International Workshop on Regional Autonomy of Ethnic Minorities, Beijing 2001.

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BIOGRAPHICAL NOTES Priit Järve Priit Järve, PhD., is senior research associate at the European Centre for Minority Issues, Flensburg, Germany, since 1997. He graduated from Tartu University, Estonia. Before joining the ECMI, he worked in the Estonian Academy of Sciences and acted also as the Plenipotentiary of the President of Estonia to the Estonian Roundtable on National Minorities. He is working in the field of political science and has published on democratisation of transitional societies, multiculturalism, and interethnic relations in the post-soviet area. Patricia Leopold Patricia Leopold, Senior Lecturer in Law, The School of Law, The University of Reading, England. Patricia Leopold is co-author of the 8th edition of O Hood Phillips Constitutional and Administrative Law. She has written on a variety of constitutional matters and is currently researching and writing on the regulation of standards of conduct of members of the devolved institutions in Scotland Wales and Northern Ireland for a book of essays, which she is co-editing. Joseph Marko Joseph Marko is Professor of International Law, University of Graz, Judge at the Constitutional Court of Bosnia and Herzegovina Elisabeth Nauclér Elisabeth Nauclér is Head of Administration at the Government of the Åland Islands since 1999. Ms. Nauclér has a long career Government of Åland, the Parliament of Åland and the Åland Delegation to the Nordic Council. In the last-mentioned institution Ms. Nauclér specialised in questions relating to national minorities and autonomy arrangements. She has also served as Civil Affairs Officer in United Nations in former Yugoslavia in 1993-1996. John Packer John Packer is Director in the Office of the High Commissioner on National Minorities (HCNM) of the Organization for Security and Co-operation in Europe (OSCE). He was previously a Human Rights Officer at the Office of the United Nations High Commissioner for Human Rights in Geneva where he held responsibilities for the Commission on Human Rights investigative mandates. Mr. Packer was a also a consultant for the International Labour Organization and the UN High Commissioner for Refugees, a Visiting Research Fellow at the Lauterpacht Research Centre for International Law at Cambridge University, and has lectured at a number of universities and professional institutions around the world. Both in professional and personal capacities, he has contributed to several conferences and publications, has been since 1991 Associate Editor of the Human Rights Law Journal and is a member of the Editorial Boards of the International Journal on Minority and Group Rights and the ECMI Journal of Ethnopolitics and Minority

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BIOGRAPHICAL NOTES Issues in Europe as well as the International Advisory Board of The Global Review of EthnoPolitics. Francesco Palermo Francesco Palermo holds PhD in comparative constitutional law from the University of Innsbruck, he is also a lecturer of comparative constitutional law in the Universities of Verona and Trento and a senior researcher at the European Academy of Bolzano/Bozen. He conducts research mainly in comparative regional studies, minority issues and constitutional law of the EU. Alan Phillips Alan Phillips was the UK Independent expert to the Council of Europe Advisory Committee on the FCNM and elected as its first Vice President 1998 to 2002. Between 1989 and 2000 he was Director of Minority Rights Group International, while today he is an independent adviser on human rights and minority rights issues, working primarily in the Balkans. A range of his articles has been published and he co-edited Universal Minority Rights with Allan Rosas. Tim Potier Tim Potier is an Assistant Professor, Department of Law, International College of Cyprus (Intercollege), Nicosia. Juha Räikkä Juha Räikkä teaches philosophy at the University of Turku, Finland. After his studies at the University Turku and the University of Miami, Florida, he earned his Ph.D. in 1992 with his dissertation titled An Essay on International Justice. He visited to the Southwest Texas State University in 1994 and European University Institute in Florence in 1999 and 2001. His research interests focus on issues in political theory, philosophy of law and metaethics. He is the editor of Do We Need Minority Rights? – Conceptual Issues (Kluwer 1996). Ranabir Samaddar Ranabir Samaddar, is the Director of the Peace Studies Programme at the South Asia Forum for Human Rights, Kathmandu. He has worked extensively on issues of justice and rights in the context of conflicts in South Asia. His particular researches have been on migration and refugee studies, the theory and practices of dialogue, nationalism and post-colonial statehood in South Asia, and technological restructuring and new labour regimes. Riccardo Scartezzini Riccardo Scartezzini is a researcher at University of Trento, Faculty of Social Sciences

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Aleksei Semjonov Aleksei Semjonov’s areas of interest include minority rights, nation building, intergroup and inter-ethic relations; attitudes and values; capacity building of Human Rights NGOs. His main regional focus is the Baltic states and Russia. He is a member of the Presidential Roundtable on Minorities, Estonia, and also of the St. Petersburg Union of Sociologists, Russia. Thomas W. Simon Thomas W. Simon teaches philosophy at Illinois State University and practices law. His books include Democracy and Social Injustice (1995, Rowman & Littlefield); Law & Philosophy (2001, McGraw Hill); and Justice andGenocide (2003, Praeger/Greenwood). He has served as an invited academic consutant for the UN Working Group on Minorities since 1998. Consutantation for an American Bar Association committee on constitutionalism included helping with drafts of Albania’s constitution. Currently, he holds an endowed chair of interdisciplinary studies at the University of Northern Colorado. Zelim A. Skurbaty Zelim A. Skurbaty, Ph.D. (Social Anthropology), Ph.D. (International Human Rigths) had been a Senior Research Fellow at the Danish Center for Human Rights and worked also for the UN High Commissioner for Human Rights. His publications include ”As if Peoples Mattered. A Critical Appraisal of the Peoples and Minorities from the Internaitonal Human Rights Perspective and Beyond” (2000); “Bibliographical Overview of the Literature in Human Rights Training” (2000); (ed.) “The Universal Declaration of Human Rights, the two 1966 International Human Rights Covenants and their Domestic Implementation in Vietnam” (2002). Markku Suksi Markku Suksi, Professor of International Law, Director of the Institute of Human Rights, Åbo Akademy University, Finland Lyal S. Sunga Dr. Lyal S. Sunga, BA, LLB, LLM, PhD, is Associate Professor, Director of the Master of Laws Programme in Human Rights and Deputy Director, Centre for Comparative and Public Law at the University of Hong Kong Faculty of Law as well as Visiting Professor at the University of Geneva Faculty of Law’s Centre for International Humanitarian Law. He is the author of two books: The Emerging System of International Criminal Law: Developments in Codification and Implementation (1997) and Individual Responsibility in International Law for Serious Human Rights Violations (1992) as well as a numerous articles in scholarly legal journals.

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BIOGRAPHICAL NOTES

Matti Wiberg Matti Wiberg is a professor of political science at the university of Turku, Finland. He defended his dissertation (Between Apathy and Revolution: Explications of the Conditions for Political Legitimacy) in 1988 and has published five other monographs, edited 13 anthologies (xxx) and published more than 150 scientific articles. Jens Woelk Jens Woelk, Lecturer and researcher in Comparative Constitutional Law at the University of Trento, Law Faculty. Graduation in Law and PhD in Comparative Constitutional Law (thesis on constitutional principles of co-operation in federal and regional systems) at the University of Regensburg, Bavaria. From 1994 to 2000 Senior Researcher at the European Academy Bolzano (Dept. ‘Minorities and Autonomies’). His main fields of interest are comparative constitutional law, esp. federalism/regionalism, minority-issues and South-Eastern Europe.

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PROLEGOMENON MAX VAN DER STOEL1: ‘. . . AUTONOMY HOLDS TREMENDOUS PROMISE AS AN INSTRUMENT OF POLITICAL ORGANISATION AND STRUCTURE, ESPECIALLY IN MULTI-ETHNIC STATES . . .’ Autonomy is among the least well-understood concepts in politics. Perhaps for this reason, it does not appear sufficiently well employed if one is to compare the number of situations where forms of autonomy might be usefully considered with the number of situations in which autonomy in fact exists. In my view, well-chosen and designed autonomy arrangements, woven into the structure of the State, have an integrationist potential which can contribute stability to situations where the population comprises significant social or regional diversity. This is because forms of autonomy allow the accommodation of diverse needs, interests and aspirations, and so can create interests and stakes for various groups within the same State, thereby inspiring common loyalty and investment. At the same time, such regimes of autonomy can reduce the appeal of extremist demands and solutions. No matter whether applied to the individual, or seized as a political concept, autonomy is a short-hand notion for a broader idea. In life, neither the individual nor groups are literally free to act as they please; we are all subject to various constraints, including that of law. Autonomy, therefore, implies some degree of independence, but not independence itself. There are a variety of forms and ways this can be manifested. Most often, politicians think of autonomy in territorial terms (within which political power is commonly distributed), but the non-territorial or personal forms are equally important. Indeed, the non-territorial forms are perhaps the more interesting insofar as they offer many more alternatives for accommodation of diversity along the lines of issues (e.g. education) which transcend and do not require territorial divisions. Aside from the division in forms of autonomy, there also exists a division in its basic types whether including legislative, executive, or administrative powers, or all three. In addition to varying forms and types of autonomy, their application can be quite flexible, whether symmetrical or asymmetrical. This flexibility is important in every State since each has its own unique mix of people and territory. Moreover, autonomy can be applied symmetrically across territory and people through simple processes of decentralisation. In my experience, both governmental authorities and the representatives of minority and other communities would do well to become better informed about the idea of autonomy and its potential instrumental value. With this in mind, I instigated 1

Minister of State in The Netherlands; Special Representative of the OSCE Chairman-inOffice for Macedonia; former OSCE High Commissioner on National Minorities (1993−2001); former Minister for Foreign Affairs of The Netherlands (1973−1977 and 1981−1982) and Permanent Representative of The Netherlands to the United Nations (1983−1986).

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PROLEGONEMON an OSCE wide inter-governmental conference held in Locarno, Switzerland, in October 1998, under the title ‘Governance and Participation: Integrating Diversity’. This conference gave rise to a process of consultations with a number of independent experts who adopted in September 1999 a set of general recommendations entitled the ‘Lund Recommendations on the Effective Participation of National Minorities in Public Life’. While neither the Locarno conference nor the Lund Recommendations were organised around or employ expressly the notion or term ‘autonomy’, they were largely influenced by it. The success of the conference and recommendations also demonstrate the interest States and the wider international community have in the subject. In my view, autonomy holds tremendous promise as an instrument of political organisation and structure, especially in multi-ethnic States and, more generally, in States composed of a diversity of populations and regions − as are most States. Indeed, in order to build an integrated and stable, yet open and dynamic, State it is imperative to maximise the utility offered by forms and types of autonomy appropriately applied. This seems increasingly a global challenge. This compilation brings together leading scholars sharing a variety of perspectives from different intellectual disciplines and regions of the world. It is an important contribution to the surprisingly modest literature, and should be read widely by policy and law-makers, public administrators and scholars.

The Hague, July 2003 GUDMUNDUR ALFREDSSON2: ‘THE MOST EFFECTIVE WAY TO PROTECT GROUP DIGNITY . . . IS TO ALLOW THEM TO CONTROL LOCAL AFFAIRS . . .’ In recent years, with the spread of violent national, ethnic and religious conflicts, minority issues have become regular features on human rights and peace agendas of international and regional organizations. Patterns of political as well as social and economic discrimination, combined with indignities and threats to identities and cultures, continue to cause such conflicts. With better knowledge of their human rights and standing under international law and before international organizations, minorities are increasingly presenting claims to and expecting action from governments and the international community. Much of the new attention to minority rights is security oriented, not least because internal conflicts often spill across borders. Respect for human rights is one method of conflict prevention, and preventive action is certainly less costly than reaction after the eruption of violence. Democracy is good for human rights, but 2

Cand. jur. (University of Iceland 1975), M.C.J. (New York University 1976), S.J.D. (Harvard Law School 1982). He is a Professor at the Law Faculty of Lund University in Sweden and Director of the Raoul Wallenberg Institute for Human Rights and Humanitarian Law.

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PROLEGOMENON minority rights must be enshrined in constitutional and legislative guarantees with available and accessible remedies, consistent with international standards, because majority rule is not necessarily friendly to or understanding of the needs of a minority. In May 1999, a series of expert meetings concluded in Lund with the adoption of the Lund Recommendations on the Effective Participation of National Minorities in Public Life.3 The meetings were convened by the Foundation on Inter-Ethnic Relations in The Hague and the Raoul Wallenberg Institute for Human Rights and Humanitarian Law in Lund, under the auspices of the OSCE High Commissioner on National Minorities.4 The Recommendations deal with the political rights of minorities at both national and local levels. One of the focal areas has to do with the administrative arrangements and the functions of non-territorial and territorial selfgovernments.5 As a matter of international human rights law, persons belonging to minorities are entitled to the equal enjoyment of all human rights, as well as non-discrimination in that enjoyment. In response to the wisdom pronounced by the General Assembly in its resolution on the fate of minorities,6 minority-specific provisions in a number of subsequent human rights instruments provide for special measures or preferential treatment with the aim of achieving equal rights for all, both in law and in fact.7 Thus, States are obliged to ensure the equal enjoyment of all human rights by minorities living within their borders, and they must prohibit and eliminate discrimination against them. The minority-specific standards in international and regional instruments and the corresponding monitoring methods are not perfect. With increased awareness of 3

The Foundation on Inter-Ethnic Relations published the Lund Recommendations with informative Explanatory Notes in summer 1999. The text is also available on the websites of the OSCE and the Raoul Wallenberg Institute at <www.osce.org> and <www.rwi.lu.se>, respectively. 4 For an historical account, see John Packer, ‘The Origin and Nature of the Lund Recommendations on the Effective Participation of National Minorities in Public Life’, 11:4 Helsinki Monitor. Quarterly on Security and Cooperation in Europe 2000, pp. 29-61. 5 For academic comments on the Lund Recommendations, see Hans-Joachim Heintze, ‘New Direction in the Approach of the OSCE High Commissioner on National Minorities: General Recommendations on Participation of Minorities’, 19:1 Netherlands Quarterly of Human Rights 2001, pp. 101–112; Ñand Kristian Myntti, A Commentary to the Lund Recommendations on the Effective Participation of National Minorities in Public Life (Turku: Institute for Human Rights, Aabo Akademi University, 2001) 75 pages. 6 In 1948 the General Assembly decided that the United Nations could not remain indifferent to the ‘fate of minorities’. This was the title of part C of General Assembly resolution 217 (III) of 10 December 1948. The Universal Declaration of Human Rights was adopted by the same resolution, in part A. 7 For a collection of dozens of human rights instruments with minority-specific standards, see Gudmundur Alfredsson and Göran Melander, A Compilation of Minority Rights Standards. A Selection of Texts from International and Regional Human Rights Instruments and Other Documents, Lund: Raoul Wallenberg Institute Report No. 24, 1997.

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PROLEGONEMON the deficiencies, important initiatives have emerged. A strong emphasis on autonomy, as a special measure for the realization of the equal enjoyment of political rights, is one important part of these new developments, which are reflected not only in the Lund Recommendations but also increasingly in the practice of many States. This book, and the conference at the then Danish Centre for Human Rights (now the Danish Institute for Human Rights) which preceded it, are part of the evidence. In the face of historical and continued discrimination against minority groups, the rules in the international human rights instruments about equal enjoyment and non-discrimination have been complemented by what the UN instruments usually call special measures, as autonomy is referred to above. Special measures are needed to realize the equal enjoyment of human rights and to place the groups, as well as their members, in a position comparable with the majority population. The special measures do not constitute privileges. Like non-discrimination, these measures are rooted in the rule of equal rights. Respect for political rights is an essential aspect of minority rights, and with widespread discrimination there is an obvious need for special measures. A group and its members cannot be really equal to the majority population unless and until equal conditions prevail; even then the group may continue to be disadvantaged because of the majority’s dominance in national life. States have a choice between a variety of measures, but the aim and result must be equal enjoyment of political rights. The measures may include the granting of power to groups and their members, which is disproportionate to their size, in order to ensure fair influence and consultation on political issues. Such special measures should include the establishment of self-governments, but the measures can also involve the requirement that governments obtain consent from or engage in meaningful consultations with groups about matters affecting them; constitutional or legislative recognition of minority laws and customs and their application by the group; and the appointment of officials chosen by the group to either specific positions or to a fixed percentage of general posts at the national level. The Lund Recommendations draw on paragraph 35 of Part IV of the Document from the 1990 Copenhagen Meeting of the OSCE Conference on the Human Dimension. In paragraph 35, it says that the participating States must give persons belonging to minorities sufficient opportunity to participate in public affairs and to protect and promote their identity. Furthermore, in the same paragraph, States ‘note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities in accordance with the policies of the State concerned.’

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PROLEGOMENON Self-government or autonomy8 can come under different names, but the label does not matter as long as the central government agrees to share power and leave local matters in the hands of group representatives. The most effective way to protect group dignity, identity and diverse customs and thus to place groups on an equal footing with other parts of society is to allow them to control local affairs. Autonomy should be seen as one of the best guarantees minorities can wish for and it has been successfully implemented in many countries, although other governments have resisted the trend. Autonomy can be both territorial and personal. With concentration in one area, a group administration can be territorial. If the group’s members, however, are spread over a larger area and/or intermixed with other population groups as is often the case, personal autonomy, meaning membership of and participation in the group’s activities regardless of residence, is a legitimate and workable solution. Personal or non-territorial autonomy also does not result in the drawing of internal borders, undoubtedly an advantage in the eyes of many governments. Autonomy is by its very nature a group right, while the members of the group are the ultimate beneficiaries. The collective entity claims the right, enjoys it and through its membership determines the form and structures of administration. In exercising its powers, the group regime must respect democratic principles and other universally recognized human rights. For example, the group must protect the rights of its own members as well as individuals of other population groups, and it must guarantee representative leadership and equality of the sexes. Group rights must also be exercised in a manner consistent with other principles of international law relating to, for example, the sovereignty, territorial integrity and national unity of States and the maintenance of international peace and security. This indication of issues associated with minority autonomies only begins to list the many difficult and complex questions, which have arisen and will come up in the drafting of legislation and in the practical application of such laws. This book, with theoretical presentations as well as thoughtful examples from real-life situations, is therefore a welcome addition to the growing literature on the subject.

Lund, June 2003

8

For literature, see for example Louis B. Sohn, ‘The Concept of Autonomy in International Law and the Practice of the United Nations’, 15 Israel Law Review 1980, pp. 180–190; and Markku Suksi (editor), Autonomy: Applications and Implications (Kluwer Law, The Hague International, 1998).

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PROLEGONEMON MORTEN KJÆRUM9: ‘THE ESSENCE OF HUMAN RIGHTS IS NOTHING BUT THE SAFEGUARD OF INDIVIDUAL AND GROUP AUTONOMY AGAINST THE ARBITRARY USE OF STATE POWER . . .’. The editor of this volume, Zelim Skurbaty, approached me to write a preface. Initially I had two reservations about doing it. First, I held an introductory speech at the opening of the joint UN Working Group on Minorities – the Danish Center for Human Rights10 conference, the offshoot of which is this book, and I felt somewhat awkward to quote myself to the audience, which had heard it viva voce. Second, among the authors of this Prolegomenon, prominent figures such as Max van der Stoel, former OSCE High Commissioner on National Minorities and Gudmundur Alfredsson, the director of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, have been featured − both are well-known specialists in the specific field of minority rights and autonomy. After some considerations, however, I decided to do some homework on autonomy and, by reworking my speech, to present something fitting to the present academic work. Thus, I hope these few notes will convey the feeling of importance that we at the Danish Institute for Human Rights attach to the issue of autonomy. This is both in terms of the research work conducted on issues related to this topic, and attending to practical aspects of autonomy, such as writing notes to the Government, teaching minority and indigenous rights, conducting seminars and workshops on the topic. By way of generalization, it can be said that autonomy is at the very heart of the human rights discourse, because the essence of human rights is nothing but the safeguard of individual and group autonomy against the arbitrary use of State power. When governments crack down on the rights of refugees and immigrants, close down the educational establishments of minorities, deny – either overtly or covertly – representation and power sharing at the local and federal levels, it is not only a refugee or a minority problem per se, but a problem closely related to autonomy in general, personal autonomy in particular. Supporting autonomy under such conditions amounts to the support of human rights of individuals and groups, and we should always keep in mind this vital linkage between the two. The Danish Center for Human Rights hosted the International Seminar on Autonomist and Integrationist Approaches to Minority Protection in April 2002. It was organized in cooperation with the United Nations Working Group on Minorities and brought together, under the roof of our Center, some leading professionals in the field of autonomy arrangements and minority rights, representing different schools of thought. They had a chance to discuss various aspects of the problems surrounding autonomy − an issue that makes headlines on a daily basis. There is a compelling reason behind the overwhelming interest of this issue by academics, politicians and media. Across the globe − from Spain and Denmark to Sri Lanka, 9

Cand. Jur. (University of Aarhus, 1984). Director of The Danish Institute for Human Rights since 1991. Member of UN Committee on The Elimination of Racial Discrimination. 10 From 1 January 2003 The Danish Centre for Human Rights has been renamed The Danish Institute for Human Rights.

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PROLEGOMENON Northern Ireland to Northern Iraq, Chechnya to Bosnia − minority groups are asserting their distinctive ethnic, religious, or national identity and demanding greater control over the expression of that identity, not only in cultural and social matters but in political and economic areas as well. Here are some snapshots that caught my eye during a casual perusal of recent press: ‘The European Court of Human Rights talks of a “democratic restructuring” without destroying the territorial integrity of Turkey with respect to Kurdish population’; “How will the Faeroes plan of a referendum on independence from Denmark fare in 2014?’; ‘Establishing Nunavut but refusing Quebec secession in Canada?’; ‘France has set in motion a process that can accord Corsica limited autonomous powers’; ‘Palestinian Autonomy or Palestinian State: That’s the Question’, etc., etc. While much of that assertion is based on the right to self-determination of peoples, what is less heard and often neglected is a plea for accommodation and self-restraint. The reason for this is that such pleas for self-restraint come typically from governments trying to support their embattled status and aiming – often - to repress dissent. This one-sided commentary to the autonomy issue is rarely productive, because disdain for give-and-take and accommodation can spawn intergroup antagonism and lead to inter-group strife and even bloodshed. This could be one of the reasons why international law, while according a right to selfdetermination to people, does not promulgate any express right to autonomy within States. Even the word ‘minority’ in legal texts is supplanted by a non-committal term, ‘persons belonging to minorities’, with an apparent implication that States owe a much weaker obligation towards them, namely – the right to enjoy their culture in community with other members of the group. Seen from the big picture of the world politics of the last century, the concept of autonomy harbours a two-pronged hazard. On the one hand, those minorities that show no flexibility and insist upon seceding from the States within which they find themselves, almost always fail in their ambitions, unable either to overcome the opposition of the State or to sustain themselves as an independent entity. On the other hand, those States that dismiss the notion of compromise must usually reckon with prolonged and violent opposition from the disaffected minority. And it is the concept of autonomy that can go beyond the erroneous equation of the right to selfdetermination and the right of secession and serve to promote the process of accommodation between States and minority groups. Autonomy, from this perspective, is a mode – and a creative mode at that − of integration, which should be distinguished from assimilation. While assimilation is aiming, one way or another, at elimination of identity and cultural distinctiveness, integration involves recognition of the identity and culture of the minority communities as well as their effective participation in all aspects of the political, economic and cultural structures of the country in which they live. This is the reason why the International Seminar on Autonomist and Integrationist Approaches to Minority Protection, which our Center hosted, dealt with the questions of the interplay between these two notions, emphasizing flexible, integrationist solutions to State-sub-State modus vivendi. Autonomy should be xxv

PROLEGONEMON considered as a tool, and like any tool, it must be used in accordance with the special circumstances of each case. Autonomy cannot create the wish for compromise between States and minority groups, but if the parties are earnestly looking for one, autonomy can provide a viable framework for flexible and creative solutions to virtually any problem arising from attempts to achieve homogeneity by imposing assimilation. In essence, and this notion is repeatedly stressed in the introduction to the present volume, autonomy is nothing but ongoing and sustained efforts of the State or international community to accommodate heterogeneity by the diffusion of powers. By virtue of history and the fact that Denmark has two home-rule regimes, one in Greenland and one in Faeroe Islands, we are all too aware of the importance of accommodation of diversity, of compromise, of showing restraint in the wellfounded hope that the other side – whichever that might be − will also reciprocate in the same spirit. In our dealings with the local governments in Greenland and the Faeroe Islands we should proceed from the flexible notion of ‘autonomy’ whose details must be ironed out in the negotiating process; and as Isi Foighel underlines in his article on Greenland Home Rule, more emphasis could focus on better accommodation and integration of the home rule regime into the overall State framework, on the optimization and streamlining of the processes of the diffusion of powers and allocation of competences between the central and local authorities. The articles that constitute the present volume, deal with a rich assortment of issues undergirding the concept of autonomy: from economic sustainability of autonomy arrangements to conceptual and philosophical aspects of autonomy, to autonomy as a participatory right, to autonomy and conflict resolution, to autonomy in the countries in transition, to legal safeguards of autonomy, etc., etc. The geographical span of the countries and groups under academic scrutiny is also impressive, stretching from India to Canada, Europe to Africa, Asia and America. The reader will surely be impressed by the scope and ambition of this publication, and also – will get new insights and perspectives that will enable him or her to turn ‘autonomy’ into a tool and concept that will be part of the solution, not part of the problem, to ethnically-based conflicts − the root of the political malaise of the 21 century.

Copenhagen, June 2003

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ABBREVIATIONS A/ A/C.3/ ADB Add. A.J.I.L. ANC ASSR CAHMIN CAP CBC CCPR CEFTA CERD CHT CCI CIS CLP CoE CSCE DCHR DR E/. . . E/CN.4/. . . E/CN.4/AC.1/ E/CN.4/AC.2/. E/CN.4/Sub.2/. . EC ECHR ECOSOC ECOSOCOR EJIL FCNM

Document of the General Assembly of the United Nations Document of the Third (Social, Humanitarian and Cultural) Committee of the General Assembly Asian Development Bank Addendum American Journal of International Law African National Congress Autonomous Soviet Socialist Republic Committee for the Protection of National Minorities Common Agricultural Policy Cross-Border Cooperation International Covenant on Civil and Political Rights Central European Free Trade Area International Convention on the Elimination of All Forms of Racial Discrimination Chittagen Regulation Act Council of Common Interests Commonwealth of Independent States Current Legal Problems Council of Europe Conference on Security and Cooperation in Europe Danish Centre for Human Rights (Now: DIHR Danish Institute for Human Rights) Decisions and Reports of the European Commission on Human Rights Document of the Economic and Social Council of the United Nations Document of the Commission on Human Rights of the United Nations Document of the Drafting Committee on the International Bill of Human Rights Document of the Working Group on the Declaration of Human Rights Document of the Sub-Commission on Prevention of Discrimination and Protection of Minorities European Community European Convention on Human Rights Economic and Social Council of the United Nations UN Economic and Social Council Official Records European Journal of International Law Framework Convention for the protection of National Minorities xxvii

ABBREVIATIONS EOKA E.T.S. FTA G. A. G. A. Res. G.A.O.R. GDR HM HRC HCNM HRLJ IACHR ICC ICCPR ICERD ICESCR ICJ I.C.J. Rep. ICLQ ICTY ILC ILM. ILO I.L.R. IMF INTERREG L. L.Q.R. L.N.Off. J. L.N.T.S. MLR MNRGT MRG NFC NIHRC NQHR OAS OAU OED OPEC xxviii

Ethniki Organosis Kipriakov Agonos (in Greek) European Treaty Series Free Trade Agreements General Assembly of the United Nations (UN) General Assembly Resolution (UN) General Assembly Official Records German Democratic Republic Helsinki Monitor Human Rights Committee OSCE High Commissioner on National Minorities Human Rights Law Journal Inter-American Commission for Human Rights International Criminal Court International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Court of Justice International Court of Justice, Reports of Judgments, Advisory Opinions and Orders International and Comparative Law Quarterly International Criminal Tribunal of Yugoslavia International Law Commission International Legal Materials International Labour Organization International Law Reports International Monetary Fund Cross-border program for enterprise cooperation in the ‘Alpenrhein-Bodensee-Hochrein’-area. Limited distribution Law Quarterly Review League of Nations Official Journal League of Nations Treaty Series Modern Law Review Martens Nouveau Recueil Général de Traités Minority Rights Group National Finance Commission Northern Ireland Human Rights Commission Netherlands Quarterly of Human Rights Organization of American States Organization of African Unity Oxford English Dictionary (Vol. NN 1−20) Organization of Petroleum Exporting Countries

ABBREVIATIONS O.R. OSCE P.C.I.J. P.C.I.J. Rep. Procs. A.S.I.L. PFM PCIJ PMR Rev ICJ Res. Rev. RDH RPF SAARC S.C.O.R. S.C. Res. SR. SSR TNC TRANSCEND UDHR U. N. UNAMIR UNCIO Doc. UNESCO UN G. A. U.N.T.S. VAT WGIP WGM WTO Yale L.J. YBECHR YBILC YBUN

Official Records Organization for Security and Co-operation in Europe Permanent Court of International Justice Permanent Court of International Justice Proceedings of the American Society of International Law Popular Front of Molova Permanent Court of International Justice Transdniestrian Moldovan Republic (in Rus.: “Pridneprovskay Moldavskaya Respublika”) The Review of the International Commission of Jurists Resolution Revision Revue des Droits de l’Homme Rwandan Patriotic Front South Asia Association for Regional Coorporation (UN) Security Council Official Records (UN) Security Council Resolution Summary Records Soviet Socialist Republic Transnational Corporations A Network for Peace and Development United Declarations for Human Rights United Nations Organization United Nation Assistance Mission in Rwanda Documents of the United Nations Conference on International Organization United Nations Educational, Scientific and Cultural Organization United Nations General Assembly United Nations Treaty Series Value Added Tax UN Working Group on Indigenous Peoples Working Group on Minorities World Trade Organisation Yale Law Journal Year Book of the European Convention on Human Rights Year Book of the International Law Commission Year Book of the United Nations

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INTRODUCTION ‘The life of every society contains an unending contest between the forces of stability and change. To change too little may lead to stagnation and death; to change too much may lead to disaster and collapse. Yet the thrust of revolution is upon our generation. Some of the thrust must be resisted if we are to live according to the lights history has given us. Yet we must know that even then we must have to accept and make possible great changes in our society. The law is utterly caught up in the immense crisis of our generation. Upon those who practice the law rests a great share of the delicate responsibility of deciding what must be preserved and what must be changed, what we shall protect and what we shall abandon.’ 1

James Hopkins

‘When autonomy is respected, the two-year-old does not carry this unfinished task into later stages of growth. In adolescence, the youngster will again concentrate on independence, but he won’t have to blast the roof off the second time around if it is already well established.’ 2

Dorothy Corkville Briggs

This book is an outgrowth of the presentations and discussions of an International Seminar on Autonomist and Integrationist Approaches to Minority Protection, held at the Danish Centre for Human Rights in Copenhagen on 3−4 April 2002 in accordance with the conclusions of the 7th Session of the United Nations Working Group on Minorities (UN WGM). The event has proved to be such a success that the recommendations of the Seminar have been put on the Agenda of the 8th Session of the UN WGM (May 2002) and, moreover, a multitude of minority NGOs, Government and academia representatives have motioned a proposal to publish the proceedings of the Seminar in order to make available its findings to a broad audience. The proposal had a snowballing effect as even authors who had not participated in the Seminar expressed their desire to contribute to the publishing project. While we respectfully declined the majority of these off-schedule contributions, some of them proved to be not only interesting, but also fit perfectly with the concept of the project. We have also found the process of considering, for publication, the contributions of people (like NGO activists or local government representatives) who, although having intimate knowledge of the problems surrounding autonomy, did not belong to the category designated by stylistic convention as ‘academics’. 1

See Hopkins, James D., (Assoc. Justice, App. Div. 2d Dept.), ‘Precedent and Change: What Are the Reasons?’ NYLJ, 12-1-64, 4:3. 2 Dorothy Corkville Briggs (20th century), U.S. parent educator. Your Child’s Self-Esteem, ch. 15 (1975).

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ZELIM A. SKURBATY There are two distinctive features, which – taken together – set this volume apart from recent analogous publications and add to its value-added benefit for both laymen and professionals. The first of them is its multidisciplinary character, seen from the fact that the authors, attacking the autonomy problematique, are coming from such diverse fields as law, economy, philosophy, political science, peace studies, etc. This pronounced multidisciplinary character of the book, being one of its strengths, could also be a source of confusion of such terms as ‘autonomy’, ‘people’, ‘minorities’, ‘self-determination’, etc. Although every author gives a particular twist to those terms, their basic meanings will readily be understood by an attentive reader: the seeming ‘semantic jungle’ is nothing but the phenomenon of semantic indeterminacy endemic to international human rights.3 The encouraging fact is that apart from academic connotations, these terms have ‘common sense’ or ‘reality-based’ under- and overtones − so much so that both professionals and laymen will easily separate the ‘chaff from wheat’ and see through them.4 Thus, instead of viewing the assemblage of authors coming from radically differing perspectives and using the basic operative terms idiosyncratically, as a semantic Babel of sorts, we decided to consider the very fact a challenge, which, if properly met, could enrich measurably the autonomy discourse. Another distinguishing feature of the present volume is its comparative thrust, whereby parallels and distinctions are constantly drawn between different autonomous arrangements in order to single out the patterns that prove to be effective in the crucible of the real-life situations. Although the authors are usually very cautious in suggesting any mechanical transference of one particular autonomy model to situations radically differing from those that gave rise to it, they always express hope that some elements of such models can still be used with due regard to the local conditions. Convinced that autonomy has the potential to bring peaceful resolution of ethnic conflicts, the authors examine a considerable number of case studies, illustrating many relevant situations in which autonomy might be contemplated: from a minimum of competence to a great number of powers just short of full independence. These case studies show that minority groups seeking greater 3

Cf. Koskenniemmi’s notion of ‘semantic indeterminacy’, to the effect that: ‘The openness of legal language causes contradiction in argument. One man’s ‘aggression’ is another’s ‘selfdefense’. It is pointed out that although most countries use the available legal vocabulary, the meanings they attach to central expressions such as ‘equality’, ‘humane treatment’ or even ‘state’ vary to a great extent. It has even been argued that the sense of words such as ‘law’ and ‘state’ in European, African, Arabic, Chinese and Indian cultures differs to the extent that even the possibility of mutual understanding seems excluded.’ See Koskenniemi, M., From Apology to Utopia. The Structure of International Legal Argument (Helsinki: Lakimuesliiton Kustannus, 1989), p. 43 4 Cf. the now famous statement of Max van der Stoel, the then High Commissioner for National Minoroties: ‘I know a minority when I see one.’ see Max van der Stoel, Keynote Address to the OSCE Human Dimension Seminar on Case Studies on National Minority Issues: Positive Results (24 May 1993).

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INTRODUCTION political identification, should also be realistic in acknowledging their limitations, and that only under this condition can they achieve concrete gains: by exercising control over their own affairs in some areas while remaining subject to the authority of the state in other areas. Consequently, from the perspective of the international community the granting of autonomy should be conceived of as the most workable and peaceable solution to the disgruntled minorities whose aspirations for cultural or ethnic respect and even self-government cannot be silenced or satisfied within the existing system of governance. By providing ample theoretical and practical backup to this thesis, the present compendium could be of immense service to international stability and respect for law. Thus, the authors of the present book share the common belief that autonomy, if properly understood and applied, holds considerable potential for ensuring an effective and harmonious co-existence of diverse groups within the modern state. Autonomy, from this perspective, can be considered as a common denominator of all success stories of peaceful coexistence in societies that are ethnically, culturally and linguistically complex, a ‘great leveler’ of sorts for all seemingly unreconcilable intra- and inter-group interests. To illustrate this overriding point, the authors spell out a host of outstanding issues to be considered when establishing autonomous regimes and identify those dynamics that may increase the chances for their success. And because the authors are both ‘philosophical’ and ‘down to earth’ in terms of their knowledge of the realities on the ground, their recommendations are likely to prove invaluable in stimulating the inventiveness of negotiators on ‘majority’ and ‘minority’ sides of the table, let alone the policymakers from interested third parties. This ability of the authors of the present volume to address the concerns of academics and analysts in the field of human rights on the one hand, and policymakers and practitioners on the other, is very much in keeping with the Scandinavian human rights institutions’ interest in bridging the gap between the policymaking and scholarly communities, between theoretical constructs about autonomy and human rights and practical solutions designed to harmonize the – often − complicated relations between minorities and majorities, state and sub-state entities. In the introduction that follows, I will start with a short overview of the concept of autonomy in modern political and international legal discourse (Part I) and conclude with the brief overview of the contributions submitted to this book (Part II). I. IS THERE AN EMERGING RIGHT TO AUTONOMY? 1.1. The Meaning of Autonomy The World is Diverse. This is a profound truth comparable only to the first of the ‘Four Noble Truths’ of Buddha, which states: ‘Life is Suffering’.5 It is profound 5

or ‘Difficult’ depending on the interpretation of the meaning of the word.

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ZELIM A. SKURBATY because if we truly accept it, we will stop fighting the diversity of peoples inhabiting the world and start, instead, thinking about the ways and means of accommodating this diversity.6 Autonomy from this perspective is both a manifestation, and an instrument for the accommodation of diversity. The contributions to this book bear testimony to the fact that the imposition of assimilation – in whatever form – does not produce harmonious homogeneity, and that the solutions to the inter-group conundrums should be sought in the accommodation of heterogeneity by politics of comprehensive inclusion of the disenfranchised groups and a diffusion of powers – all of which could be summed up by the notion of autonomy. Autonomy from this perspective is antithetical to assimilation which involves the elimination of separate identities7 constituting diversity, and congenial to integration which presupposes the recognition of distinctive identities and cultures and participation of the members of distinctive groups in political, economic and cultural structures of the state. To be autonomous is to be a law to oneself; autonomous entities are selfgoverning entities. Such entities want to be autonomous because they want to be responsible and accountable for what they do, and because it seems that if they are not the ones calling the shots, then they cannot be either responsible or accountable. More specifically, when people constituting a certain group declare that they have the right to live autonomously, what they say is that they ought to be allowed to govern themselves. In making this claim, they are, in essence, rejecting the political and legal authority over a circumscribed or ‘autonomous’ domain, emanating from the sources outside their group. What is at stake here is the legitimacy of any power 6

Cf. ‘The belief that every State is a nation, or that all sovereign States are national States, has done much to obfuscate human understanding of political realities. A State is a legal and political organization, with the power to require obedience and loyalty from its citizens. A nation is a community of people, whose members are bounded together in a sense of solidarity, common culture, a national consciousness. Yet in the common usage of English and other modern languages these two distinct relationships are frequently confused.’ See Seton-Watson, Nations and States: an Enquiry into the Origins of Nations and the Politics of Nationalism, 1977, at p.1. The sentiment is echoed by Kymlicka who notes that: ‘[the] implication is that the State should not be conceived as a monolithic unity but as an agency for recognizing groups, determining what legal status and rights they shall have, supervising and co-ordinating their interrelationships, and itself conducting certain kinds of functions in which all have a common interest.’− see Kymlicka, W., The Rights of Minority Cultures (Oxford: OUP, 1995), p.52. 7 This voluntaristic or fiat approach to group diversity is well illustrated by the Bolshevik nationalist policy during the heyday of Stalinism. In 1936 Stalin ‘determined’, that ‘The Soviet Union comprises . . . about 60 nations, national groups and nationalities’(see Stalin, Sochinenija, T. 5. p.113), although it was a well-known fact, that according to the population census of 1926, there existed minimum 185 (!) nationalities (see Vsesojuznaja perepis' naselenija 1926 g. M., 1929, T.17, pp. 26-32). This hatred of diversity is understandable in the light of the programme, envisaged by Lenin and the Bolsheviks, according to which national minorities were only a crude material for the processes of ‘sblizhenie’ (‘coming together’) and eventual ‘sliyanie’ (‘merger’) until they would turn into a super- cosmopolitan society, where the 'proletarian solidarity' would take over the national sentiments.

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INTRODUCTION exercised by the outsiders over matters affecting the group’s identity, culture and welfare. Thus, in order to be autonomous, it is the group members, and they alone, who should have the authority to determine and enforce the rules and policies that govern their lives. By analogy, an individual claiming a certain sphere of her life to be autonomous, denies that anyone else has the authority to control her activities within this sphere; and here too, the essence of her claim is that any exercise of power over these activities is illegitimate unless she authorizes it herself. These considerations allow us to immediately put forward a thesis according to which the meaning of ‘autonomy’ is either self-imposed by the state, or imposed by the international community upon a state, of specific legal obligations designed to accord a sub-state group (and individuals within that group) some degree of self-rule (or self-determination) and, thus, facilitate the preservation and promotion of those differentiating features on which that group places high premium. Additionally, because the mixed-up framework of the modern world carries the seeds of international conflicts, especially when states try to assert uniformity and assimilation by forcible means, the aim of autonomy can also be defined as a means of averting the brewing conflicts while mitigating the transnational effects of those in full swing. As is convincingly shown by the authors of the articles to this book, such a conflation of pragmatic and humanitarian considerations is a hallmark of the whole system of autonomous arrangements. 1.2. Approaches of the International Community Generally speaking, the approach of the international community to the state/substate groups’ modus vivendi can either be territorial or juridical.8 A territorial approach, which finds its international law equivalent in the groups’ claims to internal9 and external self-determination, can – potentially – ensue the revision of international and internal borders, the transfer of populations, the establishment of ‘new’ ethnic homogeneities within states as well as the proliferation of new sovereign states.10 There is no tried and tested alternatives to the territorial approach, 8 By ‘groups’ we mean problematic groups, i.e. those of them that claim, one way or another, autonomy rights. More specifically, and as is often the case, prominent political leaders usually voice claims on their behalf in terms of either internal (personal and territorial autonomy, 'minority rights', power-sharing schemes) or external self-determination (secession and creation of an independent State). 9 By sticking to more conventional understanding of internal self-determination, which is usually framed in terms of autonomous arrangements, I do not exclude the notion that internal forms of self-determination can also include the expansion of participatory rights or ‘more democracy’. 10 International legal rationalization of the self-determination options are captured in the following statement: ‘The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any political status freely determined by a people constitutes modes of implementing the right of selfdetermination by that people.’ See Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the

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ZELIM A. SKURBATY the best one being the one of a juridical character and embracing the international protection of human rights and the creation of special minority rights regimes. An important qualification to the juridical approach, which necessitates complex and sophisticated legal solutions to the minorities problem, is the proviso of the minimum level of democracy and the rule of law, without which the juridical measures (and territorial for that matter) can turn out to be nothing more than a smoke screen concealing ruthless oppression of ‘peoples’ and ‘minorities’. Autonomy, from this perspective, can be regarded as a mixtum compositum of territorial and juridical approaches, the ingredients of which should be specified on an ad hoc and context-dependent basis.11 According to the Oxford English Dictionary, ‘autonomy’ refers to several interrelated concepts, the closest of which to our present concern is ‘the right of selfgovernment, of making its own laws and administering its own affairs’.12 There are three types of autonomy regimes reflecting different levels of legal authorization, i.e. the interplay of the governmental and minority subsystems within the constitutional, statutory and customary laws of a given state. The first one is the outgrowth of the (mentioned immediately above) territorial approach, and refers to an autonomy regime with a specific territorial organization. Such organization presupposes the existence of a territorially concentrated minority population. The forms of self-government in territorial autonomy can vary considerably, but usually include the regionally based elective government with the powers to exercise control over the tax and regional education systems as well as the regulation of natural resources. The constitutional forms of territorial autonomy can again vary, from being either part of a federal system or forming a regional government with powers devolved from the central government. To illustrate the multiplicity of options and forms of the territorial regimes: the German constitution allows the subjects of the federation a limited treaty-making power (and the Russian Constitution in respect to Tatarstan) while limiting the nation’s military capacity (along with the constitution of Japan). Moreover, territorial autonomy could be the result of the voluntary union, technically called ‘associated status’, as in the case of the Cook Islands and New Zealand; ‘home-rule’ accommodation of the decolonization process, like in the case of Greenland; or a post World War I United Nations. G. A. Res. 2625 GAOR, 25 Sess., Supp. No. 28; at 121, UN Doc. A/8028 (1971), reprinted in 9 ILM 1292. (emphasis added). 11 Which should not lead to the wholesale exclusion of principle- or legal-centeredness of the apporach at the expense of case-by-case improvisations of international lawyers. 12 Autonomy – 1. Of a state, institution, etc.: The right of self-government, of making its own laws and administering its own affairs. (Sometimes limited by the adjs. local, administrative, when the self-government is only partial; thus English boroughs have a local autonomy, the former British colonies had an administrative autonomy; ‘political autonomy’ is national independence.) b. Liberty to follow one’s will, personal freedom. c. Metaph. Freedom (of the will); the Kantian doctrine of the Will giving itself its own law, apart from any object willed; opposed to heteronomy. 2. Biol. Autonomous condition: a. The condition of being controlled only by its own laws, and not subject to any higher one. b. Organic independence. 3. A selfgoverning community (cf. a monarchy).

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INTRODUCTION bilateral agreement, as in the case of the regional autonomy of the Italian (Austrian?) South Tyrol. The second type of autonomy is a personal autonomy regime with the hallmark feature of a personal law, existing parallel with the nation-wide secular law, and regulating such matters as marriage, divorce, inheritance, adoption, etc. Such a law may or may not be optional depending on the state. Personal autonomy does not require, by definition, any compact settlement of a religious or ethnic minority group, and the members of such a group can enjoy the rights enunciated in personal laws irrespective of the number or place of their settlement. The laws regulating the situation of Muslims and Christians in Israel, and Hindus and Muslims in India illustrate this type of autonomy. The third type is a power-sharing autonomy regime, which provides for a particular form of participation in the decision-making process of the government, especially in the matters touching upon the interests and well being of a specific group.13 A power-sharing regime resembles the personal one in that it does not require the group to be concentrated in one specific region. It can assume the forms of special quotas in the representation of the group in state and regional legislatures, or the procedural provisos, whereby the approval of the majority of the minority representation in the legislature is required in order for laws affecting the minority to be passed. 1.3. Is there the Right to Autonomy in International Law? Although the majority of autonomy definitions are phrased in the ‘rights’ language, there is no explicit right to autonomy in international law. Even in the travaux préparatoires of the UN Charter, the drafters were careful enough to distinguish between the status of trusteeship territories, referred to as ‘self-government’, meaning their autonomy within the terms of reference of the trusteeship arrangement, and their alleged right to self-determination and independent statehood.14 Only in a few documents, belonging to the ‘soft law’ category, can we find rather explicit, though very tentative, references to ‘autonomy’. The most prominent among them is the OSCE (former CSCE) Copenhagen Document of June 1990, in which autonomy is mentioned as a means to preserve and promote the identity of minorities: ‘The participating States note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial

13

See the article of Yash Ghai on public participation of minorities with a good exposition of the major modalities of this form of autonomy. 14 UNCIO, Vol. 6, UN Information Organization New York 1945, p. 278.

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ZELIM A. SKURBATY circumstances of such minorities and in accordance with the policies of the State concerned.’15

In 1993, the Parliamentary Assembly of the Council of Europe drafted a proposed Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms on the rights of national minorities16, where Article 11 provided that: ‘In the regions where they are in a majority the persons belonging to a national minority shall have the right to have at their disposal appropriate local or autonomous authorities or to have a special status matching the specific historical and territorial situation and in accordance with the domestic legislation of the State.’

Although the provision is made contingent on specific limiting factors (specific historical and territorial situation, etc.), if it had been adopted it would have provided a justiciable right for minority groups to seek autonomous government before the Council of Europe organs of the ECHR. However, the Vienna Summit of the Heads of State and Government of the Council of Europe (October 1993) rejected the Assembly’s draft Protocol and called only for a protocol in the cultural field to guarantee rights to individual members of minorities.17 As can readily be seen, both paragraph 35 of the Copenhagen Document and Article 11 of Recommendation 1201 expressly refer to local or autonomous administrations or authorities, which are limited to the control of the group’s own affairs. These administrations, however, should have been geared to specific historical or territorial circumstances and provide, ideally, a local or autonomous authority over that territory – the fact exemplifying the concept of autonomy qua form of internal self-determination. These documents show also that autonomy is not a static, uniform concept, but can vary in content to meet the circumstances of the group. The right to autonomy qua the specific right to self-determination is featured in the Draft Declaration on the Rights of Indigenous Peoples, Article 31 of which provides that, ‘Indigenous peoples, as a specific form of exercising their right to selfdetermination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry 15

See CSCE, Document of the Copenhagen Meeting of the Conference on the Human Dimension in 11 HRLJ (1990), p. 232, para. 35. (emphasis added). 16 Recommendation 1201 (1993). 17 Recommendation 1255 (1995), para.3. The cultural protocol has also proved to be stillborn as the Parliamentary Assembly insisted on the need for a protocol to the ECHR motioned in 2001 – see Press Release, Council of Europe Press Service 24 January 2001.

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INTRODUCTION by non-members, as well as ways and means for financing these autonomous functions.’18

The 1992 United Nations General Assembly Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities19 mentions no autonomous self-government for minorities, but does provide20 minorities with participatory rights in Article 2.3: ‘Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.’21

After the above-mentioned minority rights protocol to the ECHR was rejected22, the Council of Europe promulgated the Framework Convention for the Protection of National Minorities in 1995.23 It contains no provision on autonomous government. As a predominantly aspirational document, the Convention operates by imposing an obligation on States to implement the various provisions within their own constitutional and legal systems. Article 15 in particular provides that, ‘The Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them.’

In terms of the latest developments in the ‘juridical approach’ to autonomy,24 one could also mention the work of the Badinter Arbitration Committee, created by ‘the 18

E/CN.4/Sub.2/1994/2/Add.1 (1994), emphasis added. GA Res.47/135, Annex, 47 UNGAOR Supp.(No.49) at 210, UN Doc.A/47/49 (1993); and comments thereon, E/CN.4/Sub.2/AC.5/1999/WP.1. 20 Speaking about ‘providing’ the right, we should mind, of course, that the 1992 Declaration is a soft law document by definition. 21 The territorial dimension of autonomy is mentioned only in the context of the preservation of the ‘territorial integrity’ of the State in the Article 8.4: ‘Nothing in the present Declaration may be construed as permitting any activity contrary to the purposes and principles of the United Nations, including sovereign equality, territorial integrity and political independence of States.’ 22 See footnote 16, supra. 23 34 ILM 351 (1995). See also, Klebes, The Council of Europe’s Framework Convention for the Protection of National Minorities, 16 HRLJ 92 (1995). 24 See a comprehensive taxonomy of autonomous arrangements in the article of Yoram Dinstein ‘Autonomy’, where he distinguishes between autonomies by multilateral treaty, bilateral agreement, local legislation, local legislation based on both bilateral and multilateral treaties, by local legislation based on General Assembly Resolution, by local legislation based on bilateral treaty as well as a resolution of the Security Council, and by decree of the Security Council. Another, very interesting taxonomy of autonomies can be found in the article of Thomas W. Simon ‘Paradoxes of Autonomy: Tensions, Traps and Possibilities’, where the author classifies them as Legal (De Jure) Autonomy, Reciprocal Autonomy, 19

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ZELIM A. SKURBATY European Community and its Member States’ on 27 August 1991 in order to address (in the forms of ‘opinions or recommendations’) the clashing claims of the former Yugoslavian Republics to self-determination.25 Having started in Opinion 2 (out of 7 Opinions produced) with the statement that Article 1 of the two 1966 International Covenants on human rights establishes that the principle of the right to self-determination serves to safeguard the choice ‘to belong to whatever ethnic, religious or language community he or she wishes’.26 In keeping with this conclusion, the ‘opinion’ had gone on to say that the members of the Serbian population in Bosnia-Herzegovina and Croatia could be ‘recognized under agreements between the Republics as having the nationality of their choice, with all the rights and obligations which entails with respect to the states concerned’.27 Thus – and this might well be considered as a ground-breaking aspect of the deliberations of the Committee – the previous implication of homogeneity within an englobing State in the notion of ‘peoples’ is expressly replaced with the wider concept of a State, housing various ethnic, religious and linguistic communities (groups), all of which can insist on the right to be recognized as an entity with an identity of its own choice. Opinion 2 of the Badinter Committee, however, begs some pragmaticallycoloured questions: if Serbians, as a case in point, are accorded Serbian nationality in Bosnia-Herzegovina and Croatia, and they still remain loyal citizens of these states, what is the difference between ‘nationality’ and ‘citizenship’ in the European context? The statement of A. Pellet vis-à-vis the implications of the Opinion 2 is rather characteristic: ‘The States are thus informed: these are “imperative norms” binding all subjects of international law, and, which could one day be applied to protect, for example, the rights of Gagauz or Chechens without entailing the break-up

Variegated Autonomy, Deliberative (De Facto) Autonomy and Humanitarian Autonomy, and gives recommendations to all stakeholders on the ways of optimization of every particular arrangement. One could probably give alternative sets of classifications (see for example an extremely interesting classification provided by Johan Galtung in his article ‘The Role of Autonomy in State/Nation Dialectic’), but the ones presented by Yoram Dinstein and Thomas Simon can serve as useful guides for orientation in the legal (and non-legal) maze surrounding autonomy arrangements. I do not repeat these classifications and I see my task in giving the bird’s eye view of the autonomy and delineating the major trends pointing to the possible ‘emergence’ of the ‘right to autonomy’. 25 See Pellet, A., The Opinion of the Badinter Arbitration Committee: a Second Breath for the Self-Determination of Peoples, in: European Journal of International Law, Vol. 3, 1992, No. 1, p. 182. 26 ibid. 27 Op. cit., No. 1, p. 179.

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INTRODUCTION of Moldavia or Russia. One dare not even consider Corsicans or even Basques . . .’28

This sort of recognition of diversity – that within one State, various ethnic, religious or linguistic communities are entitled to their own nationality irrespective of the existence of state borders – might, perhaps, seem superfluous and far from opinio juris, but it opens new avenues of legal thinking, leading to juridical consolidation of the major distinction put forward in the Treaty on European Union signed in Maastricht, that is, between ‘nationality’ and ‘citizenship’. This line of thought represents the long-awaited nexus between autonomy and ‘peoples’ and ‘minorities’ rights. It also serves to secure such a human right as the right to belong to one’s homeland (which can be a kith and kin ethnic or religious unity bonding groups beyond or across national frontiers) irrespective of the formal citizenship and the right to vote in local elections there without prejudice to the integrity of the states involved. These projective loose entities – national-home regimes (patries, heimats) or ‘overlays’ over existing or future states – might or might not correspond to (sovereign) state boundaries and serve as the prototypes of new multi-purpose subjects of new international law. The realities on the ground, however, dictate more state-centric solutions to minority-based problems, especially in post-conflict situations. The precedent of Dayton Agreement of 1995 is exemplary in that it reasserted the sovereign status of the Republic of Bosnia and Herzegovina in Article 1 of the General Framework Agreement for Peace, and at the same time, created two autonomous entities: the Muslim-Croatian federation (approximately 51 per cent of the territory, including the whole of Sarajevo) and the Serb Republic (Republika Srpska) with about 49 per cent. The agreement provided for the presence of 60,000 NATO troops (including 20,000 from the United States) for one year to supervise the implementation of the agreement. NATO, whose forces were deployed immediately after the signing of the Dayton agreements on 14 December, took over officially from the UN in Bosnia on 20 December. The Constitution of Bosnia Herzegovina, set out in Annex 4 of the Agreement, reiterated the standard commitments to the Charter of the United Nations and to a variety of human rights instruments and provided, specifically, in Article I.3 that this sovereign Republic shall consist of the two Autonomous Entities. The Dayton Agreement has demonstrated that solutions to minority-based problems in modern times can require the intervention of the international community (even in the form of a transitional de-facto protectorate regime) and the imposition of autonomous regimes. The same can be said about the non-starter Rambouillet Accord and the final Kosovo peace 28

Ibid., p. 179. One could only add that before ‘daring’ to protect Corsicans or Basques qua minority groups they have to be recognized as such by a State, which in case of France could have been problematic, as the statement of its representative before the Human Rights Committee clearly shows: ‘France cannot recognize the existence of ethnic groups, whether minorities or not’, and as a logical consequence: ‘Article 27 is not applicable so far as the Republic is concerned’, see: UN Doc.. E/CN.4/Sub. 2/384/Rev.1 (1979), para. 67.

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ZELIM A. SKURBATY agreement in line with the United Nations Security Council Resolution 1244: both were predicated on the principle of territorial integrity of the Federal Republic of Yugoslavia and the creation of the autonomy within the federation as a means of guaranteeing the rights of the Kosovar Albanians. 1.4. The Pros and Cons of Autonomy29 Nature abhors a straight line: if we find one, a human made it. Nowhere this is truer than in the discourse on autonomy: the forms it acquires are numerous, and the ambivalence towards it is rampant among both politicians and lawyers. This ambivalence is easily explainable if we take into account the role ‘autonomy’ plays in the age-old debate about relative values of change and stability, individual and group rights, the ‘primordial’ diversity of groups and homogenization accompanying modern development and technology, the inclusive ideals of human rights, openness to inquiry and challenge and fossilization of static (and statist for that matter) traditions. Depending on the political and legal vectors of the moment, autonomy can promote constructive change, can avert brewing inter-group conflicts and preserve diversity, but also – can dramatize grotesquely groups’ particular characteristics, foment intergroup dissent and can be used as a guardian of narrowly-understood ‘stability’.30 The pros and cons of the hypothetical right of indigenous peoples to extended forms of autonomy and even external self-determination graphically illustrate the overall complexity of the problem: Pros: • • • •

29

the indigenous peoples have their own clear-cut identity: cultural, linguistic, religious, etc.; they have lived on their territories since time immemorial; they have established their own political institutions, most effectively geared to their traditional way of life; they exercise both internal and external control over their respective populations and territories until a very distinct, historical watershed

I deliberately omit certain lines of argumentation in order to avoid an overlap with some of the authors of the present book. See e.g. the programmatic article by Hurst Hannum in Part II of the book, where many of the issues I raise are put to detailed scrutiny. Of special interest is the exposition of the ‘pros’- and ‘cons’ of autonomy and delineation of the ‘proper’ role autonomy. 30 Cf. the statement of Henry Steiner: ‘To the extent that autonomy regimes protect historical differences but inhibit the creation, as it were, of fresh differences, they would convert the human rights movement’ framework of protection of open inquiry and advocacy into the protection of static traditions. A state composed of segregated autonomy regimes would resemble more a museum of social and cultural antiquities than any human rights ideal’, see H. Steiner, 66 Notre Dame L. Rev. 1539 (1991), at 1547.

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INTRODUCTION

•

of the external enforcement of an indigenous group into colonial dependency occurred; indigenous peoples were formally recognized as equals when they entered into treaties of peace and friendship, which were of an international character and – as a rule – were broken by the colonizing powers unilaterally, without indigenous consent;

Cons: • •

• •

the notions of ‘sovereignty’ and ‘territorial integrity’ are the foundations of international law and cannot be removed without fatally damaging the whole construction; presumably, there would be no limit to fragmentation if every ethnic, religious or linguistic group claimed the right of selfdetermination in the form of secession and the creation of a separate state;31 the prospect of achieving peace and stability in the atomized world of thousands of sovereign states and autonomy regimes seems even more bleak.32 Notwithstanding the semantic and juridical subtleties involved in these kinds of exercises, we should always keep in mind the importance of the will to interpret the notion and pragmatic content of autonomy in one way or another.33

To sum up these introductory notes on autonomy: 1. The meaning of autonomy is either self-imposed by the state, or an imposition by the international community upon a state, of specific legal obligations designed to accord a sub-state group some degree of self-rule and, thus, to facilitate the preservation and promotion of those differentiating features on which that group places high premium. Autonomy can also be regarded as a means to avert or mitigate inter-group conflicts. 2. There are three major forms of autonomous regimes: territorial, personal and power-sharing. 3. There is no explicit right to autonomy in international law, and any concrete autonomous regime stems, as a rule, from the negotiation between the central 31 For the most vivid enunciation of the threat perceived, see the report of the SecretaryGeneral of the United Nations, An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peacekeeping, – UN Doc. A/47/277 – S/24111, 17 June 1992, para 17. 32 See, UN Doc. E/CN.4/Sub.2/1992/37, para. 157. 33 The will or intention behind a particular interpretation of autonomy can be likened to the role of an observer in the uncertainty principle in quantum mechanics (or theory). The principle (called often Heisenberg uncertainty principle) stipulates that increasing the accuracy of measurement of one observable quantity increases the uncertainty with which another conjugate quantity may be known. Which might mean – analogously − that the way we observe or interpret the phenomenon of autonomy affects its very nature, its mode of existence, and ultimately − the mode of its manifestation or implementation.

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ZELIM A. SKURBATY government and the minority group, while the resulting accommodation is ratified in law. 4. There can be both advantages and disadvantages emanating from the imposition of an autonomous regime depending on various political and legal variables. Of special concern to the international community is the prospect of conservation of historical differences of the group and inhibition of the creation of new differentiating features, reflecting the processes of change in modern societies. 5. Given that rigorous standards of free and voluntary choice are met, and the concept of equal protection/non-discrimination is taken into account by all the stakeholders during negotiations leading to an autonomy arrangement, the advantages of autonomy clearly outweigh the disadvantages. Autonomy can effectively be used as a means to preserve and promote the identities of the groups, to foster economic development and to either prevent or mitigate the state-group or inter-group conflicts. 6. Taking account of the fact that there are some 6,000 to 9,000 internationally unrecognized but culturally persistent peoples or nations, and the mixed-up framework of the majority of modern states, the creation of autonomous regimes should be considered as a viable alternative to the ‘atomization’ of the international community into thousands of sovereign states.34 In fact, we are entering − at the dawn of the 21st century − the Age of Autonomy, the hallmark of which is the growing demand of the multitudes of sub-state groups for more inclusion and more self-rule – all of which can, eventually, result in the emerging right to autonomy. The articles composing this book present ample evidence that this is no longer an idle speculation, but a clear trend in modern political and legal discourse. II. AN INTRODUCTORY OVERVIEW OF THE CONTRIBUTIONS As the articles in this book are no more uniform in form and conceptualization than the actual phenomenon of autonomy on the ground, the need to reflect this diversity was more than obvious. The contributions are thus categorized under the following rubrics: General Issues: Cross-Disciplinary Appraisal of Autonomy; Theoretical Justifications; Cross-Border Cooperation, International Monitoring and Implementation; and National and Comparative Case Studies. These sections form also the four constitutive parts of the book (Parts I−IV), each of which is, in turn, 34

Subsumed in some studies under the categorical term of Fourth World nations, see for example a very interesting work by Griggs, A. R., The Role of Fourth World Nations and Synchronous Geopolitical Factors in the Breakdown of States (Berkeley: University of California at Berkeley, 1993). (Doctoral Dissertation), see also: ‘Economic Development by Invasion of Indigenous Nations’, Cultural Survival Quarterly 10(2): 2-11, 1986; ‘Central America Becomes Central Nations Reemerging Under Fire’, Fourth World Journal 1(4):227256, 1986; Nietschmann, Bernard; ‘The Third World War’, Cultural Survival Quarterly 11 (3): 1-16, 1987; and ‘The Miskito Nation and the Geopolitics of Self-Determination’, Journal of Political Science 19: 1840.’ We should, of course, regard these ‘peoples’ or ‘nations’ as territorial ethnic or cultural groups stripped of any legal connotations.

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INTRODUCTION subdivided into thematic sub-sections for easier reference. Although these subsections sometimes overlap, we have found them useful for better orientation in the wealth of diverse material compiled in this volume. 2.1. Part I General Issues: Cross-Disciplinary Appraisal of Autonomy The contributions in Part I focus on general issues and emphasize the importance of a degree of flexibility and inventiveness in defining and applying concepts in the area of autonomy. Needless to say, these articles overlap various disciplines and are eclectic so far as the methodologies applied are concerned. 2.1.1. Autonomy as a Participatory Right in the Modern Democratic State The first two articles of Part I reflect conceptualizations of the two major approaches of international community toward inter-group accommodation mentioned above: juridical and territorial. The article by Yash Ghai, Public Participation, Autonomy and Minorities, represents the power-sharing facet of the juridical approach to autonomy. The author shows, on the one hand, the high price society pays when minorities and indigenous peoples are excluded from political, social and economic decisions that have major repercussions on their lives, and on the other – a wide range of approaches that can offer possibilities for enhancing the level of participation of the disenfranchised groups. He does it through a theoretical analysis of major schools of thought on the topic (such as consociationalism and integrationist approaches, which should be distinguished from the assimilationist one) and a legal analysis of major instruments on participation of minority groups (like the 1992 UN Declaration on Minorities, the Council of Europe’s Framework Convention for the Protection of National Minorities, as well as the 1998, Lund Recommendations on the Effective Participation of National Minorities in Public Life, published by the OSCE’s High Commissioner for National Minorities in 1999). The author comes up with an assortment of principles that can widen the scope of the autonomy for minorities in the wider societies. Specifically, he singles out such factors as a) citizenship as the key to political participation; b) regional bodies that should work together to develop regional systems and provide for minority and indigenous participation in response to local realities; c) electoral laws promoting inclusion in the political process; d) special legislative procedures for situations where law-making has a major bearing on minority and indigenous communities. Overall, the author emphasizes the key role of participatory rights qua power sharing which can take the form of a specific autonomous arrangement − if desired and appropriate − in the modern democratic state. Equally important, according to the author, are adequate provision for the rights of minorities-within-minorities, such as women and other vulnerable groups.

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ZELIM A. SKURBATY 2.1.2. Legal Appraisal of Autonomy The second article by Hans-Joachim Heintze, Territorial Autonomy and International Stability: On Pros and Cons from the Viewpoint of International Law presents the advantages both for minorities and for the international community of a flexible concept of autonomy in the absence of any clear legal definition. This was evidenced by the fact that only one out of forty-four OSCE participating states had opposed the adoption of the Lund Recommendations. The author rightly notes that autonomy has more often than not been considered as a conflict-resolution device, as a means to ease tensions resulting from heterogeneity, which clearly has the advantage of according the same level of protection to both minorities and majorities. There is, however, a tendency to link territorial autonomy, which accompanies a number of regional autonomous arrangements, to ethnicity, which can, in turn, evoke the notions of ethnic mobilization and secessionism. Such an association can hinder interethnic cooperation, and the solution, according to the author, is a comprehensive set of regulations for any particular instance of selfgovernment, which should be effected in accordance with the principle of subsidiarity and the provision of full-scale political and socio-economic rights for all citizens. Perhaps, no other problem is so controversial in the international human rights discourse as the problem of the relative importance of the individual and collective dimensions. This problem is quite prominent in the autonomy discourse – the reason I35 put it under the magnifying glass of analysis in the article: Collective & Individual set Back to Back: Autonomy and the Interplay of Individual and Collective Dimensions in Article 27 of the UN Covenant on Civil and Political Rights. I made an attempt to give a detailed analysis of the travaux préparatoires of the Article 27 of the UN ICCPR and came to the conclusion that states deliberately wished to adopt rules and procedures that would maximize the chances of survival of the political status-quo. Moreover, it was shown that the assumption that if individual rights were honoured, ‘minorities’ would have no legitimate or defensible claims to further, has been proved wrong. However, the debate over the content and context of Article 27 has paved the way for the realization that the state-minority stand-off, at a fundamental level, can be resolved only in the form of an effective international legal arrangement which takes into account the collective – along with the individual − dimensions of a minority. The alleged form of such an arrangement could, ideally, be a legally recognized right to autonomy. As the questions related to the economic sustainability of the autonomous arrangements, including centre-autonomy fiscal modus operandi, are important determinants in the viability of autonomies, and have acquired – due to rapid decentralization tendencies – special significance during past few years, the next three articles of the Part I are devoted to these issues.

35

i.e. Zelim A. Skurbaty, the editor of this book.

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INTRODUCTION 2.1.3. Problems Related to the Economic Viability of Autonomous Arrangements In the article Centralism and Fiscal Federalism, Gisela Färber differentiates between a ‘centralist’ state where the central government decides about all public goods and has to guarantee their effective and equal provision across the whole territory, and a federal state where the legislative responsibility is divided among the governmental tiers and each jurisdiction decides the structure and the volume of ‘its’ public goods. The author tries to fashion answers to questions underlining ‘financial constitutions’: tax autonomy, competition for a better allocation of resources and full employment, future functions of fiscal equalisation and its construction, horizontal elements of redistribution, etc. Of crucial importance to autonomies, as the author rightly notes, is the mode of handling the fiscal revenue collected on a territory: whether it is left to that territory to be directly managed by local authorities or if it is first ‘centralised’ or brought to the centre and only afterwards redistributed or invested locally. This question comes out time and again as an apple of discord in the tug-of-war between autonomies and central authorities, and the article reviews the possible solutions to this problem – solutions lying on the continuum between centralism and fiscal federalism. Antonio M. Chiesi explores, in the article Social Structure, Social Capital And Institutional Agreement: The Trentino-Alto Adige Model, the role of ‘social capital’ in the development of Trentino-South Tyrol and the management of political and administrative autonomy. Since the very concept of ‘social capital’ is imbued with different under and overtones, resulting from the various meanings invested into it by different scholars, the author is careful to present a brief summary of the theoretical debate on its semantic boundaries and its relations with other kinds of ‘capital’. He attributes the relative success of the Trentino-South Tyrol autonomous arrangement to two important historical factors: the specific social structure that progressively reduced economic inequalities between the centre and periphery during the post war period through the institution of a welfare system at local level, and – the crux of his argumentation – the role played by social capital (community rules and culture, networks of interpersonal relations in private and economic spheres, etc.) in granting an overall trust at the macro level and co-operation incentives at the micro level. The author has succeeded in the demonstration of the transferability of his findings by showing how the application of the concept of social capital vis-à-vis Trentino-South Tyrol region, could also be profitably used for the projective analysis of the Balkan area. The last chapter of the Part I contains the article by Milford Bateman, Local Economic and Community Development as an Aspect of the Reconstruction of South-East Europe: Bringing the Local State Back In, in which the author describes a ‘local developmental state’ model, based on the potential role of regional, local and village government administrations in economic development. The author argues that the transposition of the neo-liberal approach to Central and Eastern Europe was the reason the processes of social and economic reconstruction in the Yugoslav successor states were ineffective. Inability to apply this approach mutatis xlvii

ZELIM A. SKURBATY mudantis to actual circumstances, has resulted, according to the author, in the enforced inactivity of one of the key institutional vehicles for the desired change – the local state. Specifically, the post-war reconstruction period in the area had seen the decline of many local and rural communities because of the absence of vigorous local institutional structures capable of orchestrating and promoting sustainable community policies. Instead of viewing themselves as subjects and beneficiaries of the structural changes, these communities regarded themselves as casualties of the transition period. The author comes up with specific suggestions having the potential to optimize the economic performance of the Yugoslav successor states, like local policy interventions, institution and capacity building as well as the effective allocation of financial resources for small enterprise development. 2.2. Part II Theoretical Justifications 2.2.1. Conceptual Issues Pertaining to Autonomy Part II begins with three chapters clarifying some conceptual issues pertaining to autonomy. As Hurst Hannum argues in his programmatic article, Territorial Autonomy: Permanent Solution or Step toward Secession?, autonomy may be a useful tool with which to resolve disputes involving minority rights or self-determination, but it should not be seen as a magic bullet that can resolve all conflicts, prevent violence, or guarantee political and economic development. In much the same way as it was shown in the introduction to this volume, the author argues that there are pros and cons to ‘autonomy’. Such ‘pros’ include the flexibility inherent in the concept, its compatibility with territorial integrity, and its value as a means of devolving power to smaller political entities. The ‘cons’ are exemplified by an inherent vagueness that may make meaningful dialogue about the real issues at stake in a conflict more difficult, a tendency to reinforce artificially the norm of territorial integrity, and the possibly of unwarranted expansion of traditional minority rights into the realm of political and economic power. The author takes an instrumental view of ‘autonomy’, saying that autonomy is a means to an end, not an end in itself: at the end of the day, the proper concern should be rights, not policy, and fixating on autonomy as a onesize-fits-all compromise solution is unlikely to respond to the needs either of the concerned parties or the international community. Johan Galtung explores in the article The role of Autonomy in the State/Nation Dialectic the universal quest for ‘autonomy’ based on the dictum of ‘being ruled by one’s own kind’. It is this primordial dynamic that lurks, according to the author, behind the actual or brewing conflicts between (roughly) 200 nation states in the world, run usually by one dominant (or titular) nation, and the (roughly) 2000 substate nations. The latter nations can be subdivided into three categories: those divided between two or more states, those finding themselves in states inhabited by two or more nations, or those in two or more states inhabited by two or more nations. The author goes beyond academic rationalizations by presenting some pertinent case studies, demonstrating that what we have at stake is not only the right xlviii

INTRODUCTION to self-determination, however important, but also our duty to channel the potentially discordant forces into conflict transformation. In the article Ambiguities In And Clarifications Of The Concept Of Autonomy Matti Wiberg parses the concept of autonomy from a variety of perspectives, including the viewpoint of formal logics. He shows the concept’s utter dependence on the ideological whims of different authors as well as the political vectors of power, and he gives a prescription of sorts, admonishing writers on the subject to ‘define what (he), strictly speaking, means when he uses the notion, and he should then stick to this meaning in a consistent manner’. Vagueness of the concept, the author contends, is by itself a strategic device permitting governing elites to wield power and impose their agendas. To substantiate the point he gives the examples of the Camp David Agreement, and – a more recent and dramatic example – the arrangement fashioned by the Russian Government with the Chechen rebels. 2.2.2. Meta-Legal and Philosophical Dimensions of Autonomy In the article Paradoxes of Autonomy: Tensions, Traps And Possibilities Thomas Simon undertakes the task of clarifying the conceptual tensions underlining the problem of collective autonomy as applied to minorities. Regarding international legal context as a fitting instrument for bettering our understanding of these tensions, the author comes up with a taxonomy of situations where collective, as opposed to individual, autonomy, seems more appropriate. He lists four basic options: de jure, reciprocal, variegated, de facto, and humanitarian. More specifically, types of autonomy could include: legal autonomy based on clear legal or constitutional principles; deliberative autonomy granted on a temporary basis pending a final settlement in an area of conflict; variegated autonomy involving a dynamic approach to the development of new forms of self-government; reciprocal autonomy which would allow negotiated settlements with other states; selfdeterminative autonomy which might develop into secession and independence; and humanitarian autonomy arising from international intervention to prevent or control human rights violations. 2.2.3. Autonomy and Cultural Rights The following two chapters of the Part II are devoted to the interrelationship between autonomy and cultural rights. In the article An Argument from Cultural Disadvantage Juha Raikka argues that group-differentiated legal rights of minority cultures (and of the members of such groups) can be defended by referring to the moral value of cultural equality. He goes on to say that since cultural disadvantage is a morally relevant factor, it should be taken into account when formulating the laws and public policies of multicultural liberal democracies. Thus cultural disadvantage can be taken in a variety of ways: as a sufficient condition, a necessary condition, a sufficient and necessary condition, or merely a relevant factor in the justification of group-differentiated legal rights. The author concludes that the relevant factor approach is the most satisfactory, but xlix

ZELIM A. SKURBATY leaves open the possibility that group differentiated rights might also be justified without any form of cultural disadvantage. In his article The Right of a People to Exercise their Culture: A Scandinavian Model, the former Chairman of the Home Rule Commission for Greenland, Isi Foighel, gives an interesting, first-hand account on the modalities of the Greenland Home Rule Act of 1978. The basic philosophy of the Danish-Greenlandic modus vivendi could be expressed – in the words of the author – ‘in the terms, that the population of Greenland did not wish national independence but improved possibilities of strengthening and expanding the identity of Greenland through an increased independent responsibility’. The cultural dimension of such an ‘expansion of identity’ is of vital importance, according to the author. The Home Rule Act was not, from this perspective, an expression of the par in parem (agreement between juridically equal partners) principle, but of the fact that the relationships between population groups living under conditions so much at variance should be based upon the principle of more broadly-understood equal rights, which includes responsibility for catering to the special needs of the respective partner. For all the potential the Home Rule Act holds for the Centre-Autonomy partners, the implementation process should proceed, according to the author, incrementally and ‘on the basis of a carefully worked out schedule’. 2.3. Part III Implementation

Cross-Border

Cooperation,

International

Monitoring

and

Part III of the book is devoted to the cross-border cooperation, indigenous people and international monitoring and implementation. 2.3.1. International Guarantees of Autonomy The first chapter, Autonomy (International Guarantees of Autonomy) by Yoram Dinstein, deals with international guarantees of autonomy. The author confines the broad concept of self-government to those systems that are granted to particular regions within a certain country. In contrast to federalism, which requires a general sharing of (equal) powers among all regions of a state, an autonomous regime can be seen as an exception, since self-government is granted only to chosen areas, considered on the basis of a preferential treatment by the central state; and only a national group territorially concentrated in a specific geographic area may opt both for internal and for external self-determination, i.e. to choose to stay within the borders of a multinational state or to set up a new sovereign state. The author determines the requisite factors enabling the group to claim an autonomous regime and puts to scrutiny the particular circumstances required by customary international law to effect such a decision. He gives examples of different possibilities of autonomy reflecting different historical antecedents: a multilateral treaty (e.g. Memel, 1924); a multilateral agreement (e.g. Palestinian Autonomy, 1994); local legislation (e.g. Greenland, 1979); local legislation based on both, bilateral and multilateral treaties (e.g. South Tyrol); local legislation based on a General l

INTRODUCTION Assembly resolution (e.g. Eritrea, 1962); local legislation based on a bilateral treaty as well as on a resolution of the Council of the League of Nations (e.g. Åland Islands); decision of the Security Council (e.g. Kosovo, 1999). The conclusion drawn from the comparison of these examples is that the most significant guarantee to an autonomous regime, in terms of its political and international legal underpinnings, is a decision by the UN Security Council. Only this body is able to adopt binding decisions on matters affecting international peace and security, and authorize enforcement action against a state. The problem is, of course, that the Security Council is a predominantly political – not a judicial – body, and all too often submits to the pressures of the powers of the moment. In the article International Criminal Law: Protection of Minority Rights Lyal. S. Sunga explores the strengths and limitations of international criminal law protection of minority rights, arguing that while the international community continues to treat minority rights with considerable ambivalence, it nevertheless has been forced to react to severe violations of minority rights with international criminal prosecutions, and increasingly, to develop prospective deterrence of minority rights abuse. In this connection, the article contends that until now international criminal justice has been either non-existent or ‘too little too late’ for minorities, but that the new International Criminal Court represents the international community’s first real step towards prospective deterrence of severe minority rights criminal violations when domestic avenues are blocked. In light of the rapidity of the processes shaping the system of holding violators of human rights accountable before international community, one could only expect the expansion of the autonomous powers exercised by international tribunals. 2.3.2. Autonomy: The Problem of Irredentism and Cross-Border Cooperation In the article devoted to the problems surrounding cross-border cooperation within autonomous arrangements, Cross-Border Cooperation as an Indicator for Institutional Evolution of Autonomy: the Case of Trentino-South Tyrol, Francesco Palermo and Jens Woelk convincingly show that the increasing cooperation and integration between states has, as a consequence, the dilution of national sovereignty and can lead to the transformation of border areas from mere peripheries to integrated and more efficient contact-areas. As the authors argue, internal decentralization of the states is actively complemented by the processes of crossborder cooperation (CBC), which becomes a powerful and flexible horizontal link in the autonomous setup. They proceed to analyze the international legal and political umbrella for CBC provided by the Council of Europe, like the 1980 Madrid Outline Convention on cross-border cooperation between territorial communities. The authors note that, although EC-law does not directly seize of CBC, it still plays an important role in stimulating states to improve the competence of their regions in this field. They underline the ongoing, procedural nature of CBC and the utter necessity of closer cooperation in the harmonization of domestic legal policies on the matter. The recent increase in the scope of cross-border cooperation in areas li

ZELIM A. SKURBATY inhabited by kith-and-kin groups, distributed unevenly between the host- and mother states, has drawn considerable attention from the political quarters: the fear of irredentism is still afresh due to historical legacies. This makes the authors conclude that only mature autonomies can establish modern forms of CBC, because only stable systems which are able to cooperate smoothly with the central authorities can also cooperate effectively with the neighbouring regions. 2.3.3. Autonomy, Participation and Minority Rights In the article titled Participation and the Council of Europe’s Framework Convention for the Protection of National Minorities Alan Phillips outlines the initial disappointment among many human rights activists at the relatively weak provisions and monitoring system, which had been adopted in the Convention. However, his experience as a member of the Advisory Committee in reviewing state reports on the implementation of the Convention leads him towards a more positive assessment. The Advisory Committee has been able to develop a more active role in monitoring state performance through visits and discussions with those affected than had been expressly provided in the Convention and its recommendations have generally been accepted without amendment by the Council of Ministers. He concludes that system weaknesses and deficiencies notwithstanding, the flexibility in the provisions of the Convention and the inventiveness of the members of the Advisory Committee coupled with the support of the Council of Ministers in engaging with civil society, have resulted in general strengthening of standards and practice at a national level. The way the OSCE deals with the questions of autonomy and the political participation of minorities is reflected in the article Autonomy and Effective Participation in Public Life: Developments in the OSCE by John Packer, Director of the Office of the High Commissioner on National Minorities (HCNM). He convincingly shows that despite the fact that the term ‘autonomy’ does not appear in OSCE documents in any essential form36, the commitment of participating states to democratic governance with respect for minorities and their rights has led to the consideration of forms of autonomy. This has taken place both expressly and implicitly in the evolving practice and ‘soft law’ (yet ground-breaking) standards relating to the effective participation of national minorities in public affairs. Seemingly modest, this approach has significant implications both in terms of prospects for substantial autonomies within the state and for the often politically linked issue of self-determination and its various (mis)understandings. In his contribution, John Packer summarizes the developments within the OSCE and shows how, to which extent and within which limits the notion of autonomy so far fits within the practice of the OSCE.

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See references on the OSCE and autonomy in the first part of this Introduction, in the Prolegomenon and a number of articles in this volume.

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INTRODUCTION 2.3.4. Autonomy and Indigenous People The last two articles of Part III are devoted to problems concerning autonomy and indigenous peoples. As Darren Hawkins notes in the article Indigenous Rights and the Promise of a Limited Autonomy Model despite states’ reluctance to create international agreements that endorse autonomy for minority groups, recent progress has been made in the Organization of American States with respect to indigenous rights. States appear to be compromising on a ‘limited autonomy’ model that allows indigenous groups substantial autonomy on internal matters that affect their own people while simultaneously guaranteeing the territorial integrity and political unity of the state. The author argues that this emerging compromise is the result of a dialetical historical process in which repression of indigenous people gave rise to a transnational movement calling for extensive indigenous autonomy. He singles out three political conditions that have facilitated this tentative compromise: the dominance of democratic governments free from security threats in the Americas, prevalent historical myths linking autonomy with indigenous peoples, and a relatively strong association between indigenous peoples and particular geographical areas. In the process, states and indigenous peoples are redefining the notion of selfdetermination to make the concept dependent on the context of the people seeking that status. The conclusion of the author is that while the limited autonomy model offers an appealing political compromise to states, it also faces substantial difficulties before its final adoption and may not be easily transferrable to other regions of the world or to other kinds of minority peoples. Another chapter on the same topic by José Bengoa, The Question of Indigenous Autonomy in Latin America, deals with the particular modalities of autonomous arrangements for indigenous populations in Panamá, Colombia and the Atlantic Coast in Nicaragua, existing in the region since the 1980s. The second part of the chapter is devoted to the analysis of the new autonomous arrangements in the area and the negotiations between the governments and indigenous representatives on the setup of different forms of cultural, territorial and educational autonomous structures. In conclusion, the author puts the indigenous problematique in perspective by giving a cogent analysis of the current debate on the issue in Latin America. 2.4. Part IV National and Comparative Case Studies Part IV of the book is devoted to national and comparative case studies, which, in a way, bring the problem down from the rarefied atmosphere of theoretical discussions to the realities on the ground. The facets of autonomy these cases illustrate are many and varied: from autonomy and self-determination to failed experience with autonomy to autonomy and conflict resolution, etc. Read and appreciated in juxtaposition, the chapters can convey lessons from successful and unsuccessful autonomy experiments more powerfully and effectively.

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ZELIM A. SKURBATY 2.4.1. Autonomy, Minorities and Self-Determination The first article is titled The Protection Of Minorities Between Autonomy And SelfDetermination: The Cases Of The Åland Islands And Kosovo and written by Markku Suksi. The author does not limit himself to a legal analysis of the international legal framework vis-à-vis these troubled regions, but shows the key leverage points of commonality and divergence that permitted a peaceful solution in the first case and lead to a dramatic outcome in the latter. The conclusion of the author is that although no right to autonomy can be found within the framework of the (external) right to self-determination, autonomy can still be exercised within the framework of internal self-determination, keeping in mind that the concept of autonomy is – in the first place – a matter of participation. In that sense, the decision concerning the Åland Islands in 1921 by the League of Nations may serve as an important point of reference for present and future debates on autonomy. 2.4.2. Failed Experiences with Autonomy While the Åland Islands exemplifies the success of autonomy and the politics of constructive compromise, the downside of the efforts in this field are epitomized by the case of the failed autonomy in Eritrea, which is analyzed by Eyassu Gayim in The Autonomy of Eritrea (1952-62): Learning from Failed Experience. Despite the fact that Eritrea had been featured as an ‘an autonomous unit’ in the federal state of Ethiopia from 1952 to 1962 on the basis of UN General Assembly resolution 390(V), the arrangement was seriously flawed at its outset because there were no guarantees for its practical survival. Nor was there any effective international guarantee to prevent the Ethiopian Emperor from undermining the proposed autonomy of Eritrea by asserting overall federal control over all economic and legislative policies. The Eritrean reaction to the Ethiopian intervention and domination was to wage a protracted liberation struggle for self-determination leading eventually to independence. The result was an increasing demand for independence and a lengthy internal conflict leading eventually to secession. He concludes that the failed experience of Eritrean autonomy in the 1950s showed that an autonomous arrangement that disregards the wishes and welfare of the local people concerned, which is not accompanied by effective guarantees, can hardly be satisfactory or practical. 2.4.3. Autonomy in the Countries of Transition From the failed experiment with autonomy we turn to autonomies in countries in transition. In his article A Combined Approach to Autonomy: Estonian Experience, Aleksei Semjonov outlines some formal and practical aspects of the protection of minorities’ cultural and educational rights in Estonia based on the Law on Cultural Autonomy of National Minority of 1993. Though the law made extensive general provision for cultural autonomy, the very demanding conditions for the establishment of an autonomous agency or council, including a formal demand from liv

INTRODUCTION more than 3,000 registered citizens and the organisation of a nation-wide election involving all members of the relevant minority, had made it impractical for any minority community to take advantage of the law. Despite the fact that the Estonian government has relied extensively on the existence on the law in its dealing with the international community, no autonomous cultural agencies or councils had in fact been established. However, this did not prevent members of national minorities from relying on more general long established legal rights in respect of Russian language schools and state financing for minority cultural bodies. He concludes that general laws on individual rights proved more effective than any special provisions for minority communities. The autonomous arrangement in Gagauzia, one of the troublesome regions of the former USSR republic Moldova, is examined by Priit Järve in Autonomy of Gagauzia: a Post-Soviet Experience. He analyses this situation in two interrelated contexts: the broad legal and political context common to most of the regions of the former USSR after its dissolution, and the specific context of the armed conflict between the central government of Moldova and its breakaway region of Transdniestria, which gave an incentive to the first to look for more constructive approaches to the amicable accommodation of this minority group. The author scrutinizes in detail – both the positive features and deficiencies – the ‘Law on the special legal status of Gagauzia (Gagauz Yeri)’, which is based on Article 111 of the Constitution of Moldova and recognizes the possibility of the existence of territories with a special status in the country. The author makes an attempt to draw some lessons from the seven plus years of the Gagauzia autonomous arrangement in Moldova: a strong state is necessary for the creation of a strong and well-functioning autonomy; the interaction between the Central Government and the Gagauzia autonomous territory should be put in the broader context of the relationships between all the potential stakeholders including Transdniestria. He concludes that two factors – shortcomings in the power sharing agreement and imperfect administrative (and political) culture – can be held responsible for the uneasy development of power sharing between Moldova and its autonomous region of Gagauzia. One step further from situations of instability in countries in transition with autonomous arrangements, are those that have come into open conflict after the inability of all the stakeholders to come to some working agreement on power sharing and delimitation of competencies. As the chapters that follow show, despite all its actual and potential deficiencies, autonomy has always been regarded as one of the instruments capable of preventing and mitigating ongoing conflict situations between state and sub-state actors. 2.4.4. Autonomy and Conflict Resolution In the article Autonomy: The Danish-German Border Region Sten Harck navigates in the well-chartered territory of the Danish-German autonomous arrangement. He analyses the legal aspects of the peaceful minority solutions in the Danish-German lv

ZELIM A. SKURBATY Border Region, which is often considered a model solution for other minoritymajority conflicts. After an introduction to the historical and social background of the problematic region, namely, the Copenhagen-Bonn Declarations of 1955, he gives a detailed account of the so called ‘Bill of Rights’ concerning the Danish and German minorities in the respective countries. The Bonn declarations, as the author contends, were not only the key factors for the peaceful co-existence of these two nations but turned also into international customary law. According to Sten Harck, the Danish-German Border Region has a remarkable level of legal protection, which should, even in the future, enable the minorities living there to protect and develop their own cultures. The willingness of the two kin states to provide their respective minorities with the necessary financial means – the part and parcel of the so called ‘European model’ – is of crucial importance, concludes the author. In the contribution that follows, Continued Challenges, Post-Settlement, to the Cyprus Conundrum, Tim Potier argues that since international law has been dominated the last 57 years by the pre-eminence of the nation state concept, the question of autonomy is invoked only in those places where the nation state itself has, at least in some way, failed. He adds that much of the debate has focussed upon the establishment of a ‘federation’ while little attention has been paid towards its essence. In reality, as the author contends, any ‘federation’ created – as the case in point – in Cyprus, would be extremely ‘loose’ and confer almost complete autonomy upon the two ‘federated’ states. He gives a detailed ‘projective’ account of the possible future condition of a Cyprus ‘federation’ and the issues that will remain outstanding even after a framework agreement or a more substantive agreement is concluded. Another article that explores the potential of autonomy in conflict resolution, especially in terms of transposition of the positive precedents, is Strategies of Ethnic Conflict Resolution: The Trentino-South Tyrol Case and the Balkans by Paolo Foradori and Riccardo Scartezzini. It explores the possibilities and limits of exporting the Trentino-South Tyrol model of ethnic pacification by assessing the topic from both a sociological and political perspective. The crux of the problem, as the authors see it, is the classic dilemma between what may be considered the most suitable and legitimate solution from a normative point of view and what, on the other hand, is the most feasible and workable solution in a given specific and concrete context. Starting from the definition of ethnic conflict and which remote and proximate factors can cause it to manifest violently, the authors give a number of evident reasons of the many constraints to any attempt of exportation. The authors stress the role of domestic elites as a catalytic factor in triggering ethnic conflicts as well as the democratic deficit in the Balkans as a whole exacerbated by unfavourable economic conditions. Their conclusion is that the role of the international community in the stabilization of the Balkans is fundamental, especially its efforts to promote and support political and economic democratization of the region.

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INTRODUCTION 2.4.5. National and Regional Experiments with Autonomous Arrangements The overarching theme of the three contributions that follow is national and regional experiments with autonomous arrangements, introduced by the article Patricia Leopold Experiments with autonomy in the United Kingdom since 1998. As she admits at the outset of her deliberations, autonomy is a new concept in the British Constitution which has been provided for in a limited sense since 1998 in the provision of devolved self-government for three of the countries making up the United Kingdom: Scotland, Wales and Northern Ireland. The author first outlines the background to the changes introduced in 1998, and explains briefly the three different types of autonomy provided in the UK: representation of minority groups and power sharing; equality of opportunity and human rights; and cultural protection. She gives analysis of the legal and constitutional provisions that have brought about changes in the forms of self-governance in these regions, with special reference to the position in Northern Ireland. The latter is chosen because the devolution arrangements for Northern Ireland have particular provisions for the protection of minority rights and for the creation of a consociational government not found in the other devolution arrangements. The contribution that follows is titled The Status of Autonomous Territories in International Organizations, Experiences in Nordic and Continental European Cooperation, and is written by Elisabeth Nauclér, who is the Head of Administration of the Government of the Åland Islands. She puts under scrutiny – with emphasis on the Åland autonomy – three Nordic autonomous territories within the framework of the Nordic and European cooperation schemes. While all three autonomous territories have the same representation in the Nordic co-operation, they have different statuses and cooperation modalities within the European Union. The author gives a detailed comparative analysis of these autonomies and draws a number of lessons, potentially usable for other regions and situations. And the last contribution crowning the present volume is the article-essay by Ranabir Samaddar, Minority Rights and Forms of Autonomy in South Asia, in which he parses the various forms of autonomy in countries of South Asia in the context of the debates on minority rights and the right to self-determination. In reflecting on the practices of protection of minorities and other vulnerable groups – like constitutional arrangements of autonomy aimed at giving a measure of satisfaction to the right to self-determination – the essay takes a brief view of the existing debates on the relevant issues, and tries to figure out the ways in which the political experience of South Asia, as a decolonised region, can enrich the discourse of rights and justice. The essay addresses principally four issues on the basis of the empirical study: (a) the debate on self-determination and the accompanying questions of rights and justice; (b) the thin line between ‘minorities’ and ‘people’ – the two poles on which two sets of rights are perched, namely rights of the minorities and the right to selfdetermination (c) globalisation and the international character of the conundrum; (d) and, the imperatives for a move from rights based argument to justice and reconciliation based argument and thought. lvii

ZELIM A. SKURBATY The summary conclusions distilled from the contributions of the authors, as well as recommendations to the professionals (and laymen for that matter) working on the modalities of the prospective ‘right to autonomy’ can be found in the article of the editor of this volume, titled Is There an Emerging Right to Autonomy? Summary Reflections, Conclusions and Recommendations.

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PART I GENERAL ISSUES: CROSS-DISCIPLINARY APPRAISAL OF AUTONOMY

AUTONOMY AS A PARTICIPATORY RIGHT IN THE MODERN DEMOCRATIC STATE PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES Yash Ghai 1. INTRODUCTION In the last two decades there has been a marked shift from the limited protection against discrimination that characterized the original efforts of the United Nations (UN) regarding minorities, towards a more active engagement of the state in facilitating the development of minority cultures and promoting a political role for minorities.1 Notions of identity, emphasizing states’ responsibility to promote minorities’ culture, language and religion, and the rights of minorities to public participation, are central to the new understanding of the protection of minorities. Issues of minority rights have been subsumed under ethnic relations to a significant extent, focusing on the relations of minorities with other communities. New norms and institutions have been developed in the context of intense ethnic or religious conflicts, and as part of efforts to restructure states, encourage the coexistence of different ethnic groups, and provide security to cultural and national minorities. The emphasis on identity and public participation has led, in various ways, to the political recognition of minority or ethnic groups and their collective cultural and political rights. Contemporary efforts at minority protection are also influenced by the adoption of democracy in regions and states which had hitherto had military or one-party regimes. Democracy is understood as encapsulating various values – tolerance, pluralism, freedom of expression, participation and accountability. As the foundations of democracy in human rights are explored, the salience of minority rights as an essential component of a democratic society is acknowledged. Increasingly, the framework of rights is used to assess social and political progress, including the situation of minorities. 1 Throughout this text, the term ‘minority’ is used broadly to include indigenous peoples where applicable. However, the author and MRG recognize that some indigenous peoples reject the designation ‘minority’.

3

YASH GHAI However, there is no universal formula for minority participation. In the past there was an excessive tendency to look at minority rights from the perspectives of the majority and of ‘nation building’, requiring common and exclusionary loyalties and the homogenization of public and private space. Now, it is arguable that the present approach is marked by the concern for finding a distinctive political and social role for minorities. Supporters of minority rights, focusing on devices to protect the identity of minorities, have perhaps paid insufficient attention to another aspect of minority protection, that is, its effect on wider societal and inter-group relations. Effective protection of minorities depends also on minority–majority relations, the integration of communities, and the development of common values and loyalties to sustain the wider political community. Currently (at least in Western scholarship) two competing views dominate regarding the protection of minorities2. The more fashionable among key policy makers in Europe is connected with Lijphart’s concept of consociationalism, which despairs of peaceful coexistence of ethnic groups unless special constitutional provisions are put in place to recognize their corporate entity and to confer on them the right to separate representation and participation in public bodies. Its typical features are segmental autonomy for ethnic groups (if possible through territorial arrangements, otherwise through forms of group or cultural autonomy), proportional and frequently separate representation, proportional participation in institutions and services, and group veto. The other approach is integrationist, to be distinguished from assimilation, for integrationists value minority cultures and identities, but seek to establish a political system in which all citizens participate equally. It aims to provide constitutional and political incentives for people of different groups to cooperate, either through coalition of ethnic parties or, hopefully, the establishment of multi-ethnic parties, generally relying on electoral laws which encourage inter-ethnic cooperation.3 It relies on a clearer distinction than consociationalism between the common public space, with state neutrality, and the private where each group is free to pursue its linguistic, religious and cultural predilections. It emphasizes individual rights, claimed and exercised in the name of citizenship, unlike consociationalism which places considerable emphasis on group rights. In practice a state may be able to incorporate elements of both approaches. South Africa and Fiji, both discussed later, provide instructive examples. 2. DEFINITION OF PUBLIC PARTICIPATION Although a number of international and regional instruments require states to promote the right of minorities to participation, few define participation. However, a 2 For a useful summary see T.D. Sisk, Power Sharing and International Mediation in Ethnic Conflicts (US Institute of Peace, Washington, DC, 1996). 3 See D. Horowitz, ‘Encouraging Electoral Accommodation in Divided Societies’, in B. Lal and P. Larmour (eds), Electoral Systems in Divided Societies: The Fiji Constitution Review (Research School of Pacific and Asian Studies, ANU, Canberra, 1997).

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PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES notion of participation may be gleaned from these instruments. The Universal Declaration of Human Rights (UDHR) and the International Covenant of Civil and Political Rights (ICCPR) protect the right to take part in government or in the conduct of public affairs. The UN Committee on Human Rights has elaborated this provision by stating that the: ‘conduct of public affairs . . . is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers . . . [covering] all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels.’ (General Comment 25, 1996)

These instruments protect the right to vote (the UDHR more emphatically when it states that the ‘will of the people shall be the basis of the authority of government’) and of equal access to the public service. The freedoms of expression, procession, association and conscience imply, and facilitate, participation in politics and public policies. Overarching these specific instances is the general right of selfdetermination, proclaimed in the UN Charter, the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR), as belonging to ‘all peoples’. Although the right is collective, every person is deemed under it to have certain political rights, particularly participation rights expressly granted in the ICCPR. But the reference to the pursuit of economic, social and cultural development indicates that participation rights are not restricted to politics or administration. The UDHR protects the right: ‘freely to participate in the cultural life of the community, to enjoy the arts and to share in the scientific advancement and its benefits’. (Article 27)

The ICESCR guarantees other forms of participation, in the economy, trade unions, culture and arts, scientific research and literary activities. In more recent years, the emphasis on ethnic identity has produced a particular concern with participation rights of minorities. It is through participation that a person expresses and protects his or her identity, and the survival and dignity of the group is ensured. Participation in cultural, educational, linguistic and religious affairs is given special attention, for these matters are closely connected to a group’s identity. Under the UDHR and the Covenants, members of minorities are as much entitled to these rights as members of the majority group. However, so far as the exercise of political influence and participation is concerned, the general principle of non-discrimination is not sufficient. As a minority, a group’s interests may well be different from those of the majority; and its culture is likely to be marginalized by that of the majority. Its population may be dispersed through the country, and it will not, as a general rule, have adequate numbers of legislators etc. to influence the formation of government or its policies. Therefore, in order to ensure effective participation, it is necessary that special procedures, institutions and arrangements be established through which members of 5

YASH GHAI minorities are able to make decisions, exercise legislative and administrative powers, and develop their culture. Conceived in this broad way, participation covers many areas of life, both state and private sector organization, and involves a number of activities. These include taking part in national politics through participation in political parties, standing for elections and voting in them. Participation covers forms of enacting legislation, and may include vetoes by a group on specified matters. It encompasses other forms of influencing policies, through the media, lobbying, etc. It can cover mechanisms for consultation and negotiations. Thus participation may signify the ability of minorities or their members to bring relevant facts to decision-makers, argue their position before decision-makers, propose reform, be co-decision-makers, veto legislative or administrative proposals, and establish and manage their own institutions in specified areas. 3. THE IMPORTANCE OF PUBLIC PARTICIPATION RIGHTS Many of the general justifications for minority protection apply equally, or even more forcibly, to participation rights. A major justification is the inherent fairness of minority protection. Members of minorities are entitled, like any other person, to human rights and freedoms, of which participation is an essential aspect. Minorities have the right to influence the formulation and implementation of public policy, and to be represented by people belonging to the same social, cultural and economic context as themselves. For a political system to be truly democratic, it has to allow minorities a voice of their own, to articulate their distinct concerns and seek redress, and lay the basis of deliberative democracy. The rationale for special measures is not to create a privileged position for minorities but to place them effectively in the same position as members of the majority. Paradoxically, special measures can help towards the integration of minorities, for the prospects of integration are better if minorities become involved in national political and social processes. They acquire a stake in the system, and are able to contribute to policy making and play a part in administration. All too often minorities become alienated from mainstream national processes because they see no role for themselves in these processes or believe that they cannot influence outcomes. Others then claim to speak for them – and claim to know better what is good for them than the minority itself. This encourages prejudices against and the stereotyping of minorities. Participation also develops and utilizes the talents of minorities for the national good. States which welcome participation and integration of minorities tend not only to be more stable, but also more prosperous. The availability of human rights to members of majority communities themselves may depend on the enjoyment of rights by members of minorities. The whole concept of universal and human rights suffers when some individuals or groups are denied rights on the grounds of their religion, language or colour. In some multi-ethnic states, for example Malaysia and Fiji, it has been very difficult to develop a popular understanding or appreciation of human rights, because human 6

PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES rights are often seen as protecting minorities against the special status and authority of the majority. But if minorities are denied rights, there is the danger of general intolerance and authoritarianism. The denial of rights to minorities also leads to their denial to all in other ways. Fair treatment of minorities is essential to social peace and stability. Social, often violent, conflict that results from the oppression of minorities creates conditions in which there is a massive internal and external displacement of persons, and the movement of people to some parts of the country or even within particular cities, becomes impossible. The government is unable to ensure people’s physical or psychological security. The state itself becomes a major violator of rights. Oppression of minorities has led to inter-state wars. It has been easy to find in a country’s ill treatment of another state’s ‘kin people’ an excuse for territorial aggression. Special measures can also be justified as providing cultural diversity within, and thus enriching, the wider society. Such diversity challenges the dominant ideas and values of society. It promotes comparisons and debates, keeps society open to new ideas and protects it from narrow orthodoxies. Participation by minorities helps to put old policies in new contexts, often highlighting their weaknesses or ethnic bias, and drawing attention to the need for new policies and approaches. Public participation promotes inter-ethnic dialogues, and averts ethnic conflicts borne out of misunderstanding or ignorance. This recognition of diversity is particularly pertinent now, when few states are mono-ethnic. States and individuals are engaged in multiple relations with other political and cultural systems, and need the background and skills to negotiate numerous contexts where different cultures meet and interact. This article proceeds on the assumption that minorities welcome opportunities for participation in public affairs and in other national or communal matters. But it is possible to conceive of minorities who would regard participation – on the terms of the state and in its institutions – as compromising their fundamental claims or wishes. This is most evident with a number of indigenous peoples, who, perhaps reflecting their unhappy experience with national institutions, see their goal as selfdetermination, meaning either independence or a high degree of autonomy. The Draft UN Declaration on Indigenous Peoples makes the exercise of rights by them optional (‘if they so choose’, Articles 19 and 20). But some minorities may wish to integrate politically (such as Hindus and Christians who resisted the imposition of communal representation in Pakistan). Some groups might feel a threat to their identity in involvement with national politics and institutions, where their own influence may be marginal. Individual members of minorities may desire nothing more than to be left alone by their own and other communities. However, there are many forms of participation, not all involving the surrender to a state’s claims or assimilation, and sometimes participation rights are optional and facilitative, both for communities and individuals.

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YASH GHAI 4. LEGAL FOUNDATIONS FOR PUBLIC PARTICIPATION RIGHTS OF MINORITIES The juridical case for minority participation rests on three principal sources, apart from the general norms of human rights: minority rights, indigenous peoples’ rights and, more controversially, the right to self-determination. Minority rights may also be protected in bilateral treaties, especially in Europe, dealing with national minorities and the employment of foreigners. 5. MINORITIES When the UN began work on an international regime of rights, it emphasized individual rights and carefully avoided giving rights, particularly political rights, to groups. Article 27 of the ICCPR, until recently the principal UN provision on minorities, was drafted in narrow terms. It reads: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.’

Although this may suggest that it is up to the state to determine whether it has minorities, the UN Human Rights Committee has stated that the question is a factual one to be decided through objective tests. Under the Articles, rights belong not to minorities as groups, but to individual members, although these rights can only be exercised in association with other members of the community, thus giving them a ‘collective’ dimension. Rights given to members of minorities are negative, prohibiting the state from suppressing their culture or language. But it could be argued that this negative prohibition may be transformed into a positive right, that is, the state is under an obligation to intervene proactively, by implementing legislation or programmes, to ensure that Article 27 is not violated, rather than simply refraining from certain actions. Thus despite the parsimonious language of the Article, it has the potential to develop into the framework a broader entitlement, including a measure of autonomy – and the UN Human Rights Committee has tried to do this in recent years. In a series of decisions, the Committee has interpreted the Article as a basis for collective minority rights (Kitok v. Sweden, 1988), as a basis for the preservation of the culture and way of life of a minority group (Lubicon Lake Band v. Canada, 1990) and as a basis for protecting and developing the traditional way of life of minorities (Linsman v. Finland, 1995). The Committee recognized that in some situations, Article 27 rights may be connected to a territory, for example when cultural rights consist of a way of life which is closely associated with territory and use of its resources. The Committee has given a broad meaning to ‘culture’, noting that culture manifests itself in many forms, including a particular way of life 8

PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES associated with the use of land resources and traditional occupations, especially in the case of indigenous peoples (General Comment 23, 1994). The Committee has also interpreted the Article to include elements of group rights, since the prescribed rights ‘depend in turn on the ability of the minority group to maintain its culture, language or religion’. Nor are rights merely passive, since ‘positive steps may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with the other members of the group’. (para. 6.2)

From the nexus between culture and territory, the Committee draws the right of minorities to participation, observing that the enjoyment of cultural and other rights imply the ‘effective participation of members of minority communities in decisions which affect them’ (para. 7). This broader approach is reflected in the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities adopted by the General Assembly in 1992. Although it also recognizes only the rights of individuals, it places positive obligations on the state to protect the identity of minorities and encourage ‘conditions for the promotion of that identity’ (Article 1). The Declaration places particular emphasis upon the right of minorities ‘to participate effectively in cultural, religious, social, economic and public life’ (Article 2.2). They also have the right to participate in decisions on national and regional levels concerning the minority to which they belong or where they live (Article 2.3). Three further specific participation rights are guaranteed – the right to maintain their own associations (Article 2.4), to maintain contacts with members of other minorities and citizens of other states to whom they are related by national or ethnic, religious or linguistic ties (Article 2.5), and the right to participate fully in economic progress and development (Article 4.5). A case for minorities’ rights to participation can also be made on the basis of Article 25 of the ICCPR, which gives every citizen the right and the opportunity: ‘to take part in the conduct of public affairs, directly or through freely chosen representatives; to vote and to be elected at genuine periodic elections on universal franchise … and to have access, on general terms of equality, to public services’.

Although the Article does not mention minorities, it has been argued that where a minority is unrepresented or under-represented in national political processes, either because of their small numbers or because of systematic exclusion, special processes and structures for political participation must be developed to respond to the spirit of Article 25(a).4 Such an argument was advanced to the UN Committee on Human 4

See M.E. Turpel, ‘Rights of Political Participation and Self-determination in Canada’, in H. Reynolds and R. Nile (eds), Indigenous Rights in the Pacific and North America: Race and

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YASH GHAI Rights by the Mikmaq Tribal Society in support of its claim to be represented at the Canada constitutional conferences (separately from the participation by the Canadian First Nations Council).5 The UN Committee on Human Rights concluded that the article did not require that any affected group, however large or small, be able to send a representative, but did not rule out special representation in suitable cases. Several initiatives have been taken in Europe, through the Organization for Security and Cooperation in Europe (OSCE), the Council of Europe and the European Union (EU) to promote the concept of participation and autonomy. This is manifested in both formal declarations and interventions to solve ethnic conflicts in Europe (such as the Rambouillet proposals for Kosovo/a). In Article 35 of the Copenhagen Document on the Human Dimension (1990) of the Conference on Security and Cooperation in Europe (CSCE, the predecessor of the OSCE), member states have undertaken to respect the rights of members of national minorities to: ‘effective participation in public affairs, including participation in the affairs relating to the protection and promotion of the identity of such minorities.’

The Document takes particular note of provisions for certain minorities: ‘by establishing . . . appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities.’

The principal instrument of the Council of Europe is the Framework Convention for the Protection of National Minorities (1995) which protects various rights of minorities, obliges the state to facilitate the enjoyment of these rights, and recognizes many rights of ‘identity’. It obliges state parties to: ‘create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them.’ (Article 15)

The exercise of some of these rights implies a measure of autonomy, and the prohibition against altering the proportion of a minority in areas inhabited by them (Article 16) will have the effect of enhancing prospects of local autonomy. The Copenhagen Document and statements of principle by the Council of Europe, although not strictly binding, have been used by the OSCE High Commissioner on National Minorities and other mediating bodies as a basis for compromise between contending forces, and have thus influenced practice, in which participation rights, including autonomy, have been a key constituent.6 Nation in the Late Twentieth Century (University of London and Sir Robert Menzies Centre for Australian Studies, London, 1992) pp. 104–5. 5 Ibid., p. 106. 6 See A. Bloed, ‘The OSCE and the Issue of National Minorities’, in A. Phillips and A. Rosas (eds), Universal Minority Rights (Åbo Akademi University Press, Åbo, 1995); OSCE High

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PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES The then European Community (now European Union) has also used conformity with the Copenhagen Document as a precondition for the recognition of new states in Europe. The ability of existing states (which is relatively unregulated by international law) to confer recognition on entities, especially breakaway states, can be a powerful weapon to influence their constitutional structure. When various republics within the former Yugoslavia and the Soviet Union were breaking away, the European Community issued a Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union (16 December 1991). Among the conditions a candidate had to satisfy before it would be recognized was that its constitution contained: ‘guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE’.

Similar principles have been used for admission to the Council of Europe and the EU. 6. INDIGENOUS PEOPLES The International Labour Organization (ILO) Convention on Indigenous Peoples (No. 169), adopted in 1989, and representing a reversal of the paternalistic and assimilationist approach followed in the 1957 Convention, recognized the: ‘aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live’.

Their cultural and religious values, institutions and forms of traditional social control are to be preserved (Article 4). The system of land ownership and the rules for the transmission of land rights are to be protected (Articles 14 and 17). States are required, in applying the Convention, to: ‘consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly’.

And the consultation shall be in: Commissioner, Lund Recommendations on the Effective Participation of National Minorities in Public Life, 1999; J. Packer, ‘Autonomy within the OSCE: the Case of Crimea’, in M. Suksi (ed.), Autonomy: Applications and Implications (Kluwer Law International, The Hague, 1998); R.S. Ratner, ‘Does International Law Matter in Preventing Ethnic Conflict?’, 32:3 New York University Journal of International Law and Politics (2000), pp. 591–698; P. Thornberry, ‘Images of Autonomy and Individual and Collective Rights in International Instruments on the Rights of Minorities’, in Suksi (ed.), op. cit.

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YASH GHAI ‘good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures’. (Article 6)

A more broad ranging provision provides (Article 7): ‘The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition they shall participate in the formulation, implementation and evaluation of plans and programs for national and regional development which may affect them directly.’

Although an advance on the 1957 Convention, it has been criticized for being ‘paternalistic’, and its negotiations involved a limited participation by indigenous peoples.7 These deficiencies were meant to be addressed in another exercise of standard-setting, the Draft UN Declaration on the Rights of Indigenous Peoples (1992). It proclaims their right to self-determination, under which they may ‘freely determine their political status and freely pursue their economic, social and cultural development’ (Article 3). The principle of self-determination gives them the ‘right to autonomy or self-government in matters relating to their internal and local affairs’, which include social, cultural and economic activities, and the right to control the entry of non-members (Article 31). It recognizes their ‘collective rights’ (Article 7) and the right to maintain and strengthen their distinct political, economic, social and cultural characteristics (Article 4). These ideas have already formed the basis of negotiations between indigenous peoples and the states in which they live, giving recognition not only to their land rights (as in Australia and New Zealand) but also to forms of autonomy (as in Canada). Indigenous peoples, particularly in North America and New Zealand, have other legal bases for their claims as well: (a) their ‘inherent sovereignty’ which pre-dates colonization and (b) treaties with incoming powers.8 The former is more important in the USA and Canada than in Australia or New Zealand. The US Supreme Court has recognized the ‘sovereignty’ of Indian tribes and, more narrowly, the rights of Alaskan tribes. With this ‘sovereignty’ come various rights of participation, particularly of self-government. Canada is only now coming to terms with First Nations’ sovereignty, granting autonomy and land rights to First Nations, and with it significant participation in boards, committees and other parts of the administrative machinery. As in the USA, the federal legislature can derogate from the ‘sovereignty’, although aboriginal and treaty rights have been entrenched in the Constitution and the Charter of Rights and Freedoms. In New Zealand progress has been achieved through resuscitation of the Waitangi Treaty, signed in 1840 between 7

G. Nettheim, ‘International Law and Indigenous Political Rights’, in Reynolds and Nile (eds), supra note 4, p. 25. 8 For what has been called ‘treaty federalism’, see J.Y. Henderson, ‘Empowering Treaty Federalism’, 58 Saskatchewan Law Review (1986), pp. 241–329.

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PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES Maori Chiefs and representatives of the British Crown, which was judicially pronounced ‘a simple nullity’ in 1877. In recent years courts have drawn various implications from its general provisions for the partnership between the Maori and the government. The two parties should behave reasonably and in good faith to each other and negotiate to solve disputes that arise out of treaty provisions. A similar principle of good faith negotiations has been enunciated by the Canadian courts.9 Both in New Zealand and Canada this approach has given indigenous peoples significant participation in law, in regulations and contracts over natural resources and in the development of traditional lands. Another basis for participation of indigenous peoples has been their increasing control over their traditional lands, and the resources that have been transferred to them in settlement of previous acquisitions of land. In Australia there have also been some moves towards selfgovernment, the most obvious example being the Aboriginal and Torres Straits Islands Commission. 7. SELF-DETERMINATION The broadest source of autonomy as a form of participation is self-determination, increasingly analysed in terms of the internal, democratic organization of a state rather than in terms of secession or independence. The UN General Assembly resolved many years ago that autonomy is a manifestation of self-determination. The greater involvement of the UN or consortia of states in the settlement of internal conflicts has also helped to develop the concept of self-determination as implying autonomy in appropriate circumstances.10 However, the birth of new states following the collapse of the communist order in the Soviet Union, Eastern Europe and the Balkans, has removed the taboo against secession, and the international community seems to be inching towards some consensus that extreme oppression of a group may justify secession. This position has served to strengthen the internal aspect of self-determination, for a state can defeat the claim of separation if it can demonstrate that it respects political and cultural rights of minorities. A further, and far-reaching, gloss has been placed on this doctrine by the Canadian Supreme Court which decided in 1999 that, while Quebec has no right under either the Canadian Constitution or international law to unilateral secession, if Quebec were to decide on secession through a referendum, Ottawa and provinces would have to negotiate with Quebec on future constitutional arrangements. Such a view of self-determination has some support in certain national constitutions. Often constitutional provisions for autonomy are adopted during periods of social and political transformation, when an autocratic regime is 9

See S. Lawrence and P. Macklen, ‘From Consultation to Reconciliation: Aboriginal rights and the Crown’s duty to Consult’, 79 The Canadian Bar Review, 2000, pp. 252–91. 10 See T.M. Franck, ‘Postmodern Tribalism and the Right to Secession’, in C. Broleman et al. (eds), Peoples and Minorities in International Law (Martinus Nijhoff, Dordrecht, 1993); and A. Rosas, ‘Internal Self-government’, in C. Tomuschat (ed.), Modern Law of Selfdetermination (Martinus Nijhoff, Dordrecht, 1993).

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YASH GHAI overthrown, a crisis is reached in minority–majority conflicts, or there is intense international pressure. Propelled by these factors, a number of constitutions now recognize some entitlement to self-government, such as Fiji (for indigenous peoples), Papua New Guinea, the Philippines, Spain and Ethiopia which gives its ‘nations, nationalities, and peoples’ the right to seek wide-ranging powers as states within a federation and even guarantees the right to secession. The Russian Constitution of 1993, in the wake of the break-up of the Soviet Union, provides for extensive autonomy to its constituent parts, whether republics or autonomous areas.11 The Chinese Constitution entrenches the rights of ethnic minorities to substantial self-government, although both there and in Ethiopia the dominance of one party denies the substance of autonomy.12 8. PRECONDITIONS FOR PUBLIC PARTICIPATION Rights of participation cannot be enjoyed unless certain conditions exist. These include physical and emotional security, financial resources and minimum levels of education for the minorities. There has to be a toleration of opposing, particularly minority, views, and a general condemnation of discriminatory practices. States must ensure the promotion of minority cultures, intercultural exchanges and education in schools, the teaching and development of minority languages, and the protection of religious beliefs and practices. 9. CITIZENSHIP AND OTHER BASES OF ENTITLEMENT TO RIGHTS Traditionally, rights were regarded as the entitlement of citizens only. Such a restriction is not consistent with international instruments, nor indeed with most national constitutions. In this era of mass migrations and globalization, such a restriction would deny many people what have come to be accepted as basic human rights. Rights have been extended to non-citizen residents in several countries in recent decades, reflecting both the general importance of rights and the fact of migration. It is not possible in this Article to discuss all the restrictions on the economic, social, cultural and political rights of non-citizens. However, some examples, dealing with the principal participation rights examined here, will illustrate the denial of participation rights of non-citizens who are in a state for

11

See J. Agnew, ‘Postscript: federalism in the post-Cold War era’, in G. Smith (ed.), Federalism: The Multiethnic Challenge (Longman, London, 1995); N.A. Lynn, and A.V. Novikov, ‘Refederalizing Russia: Debates on the Idea of Federalism in Russia’, 27:2 Publius (1997), pp. 187–203; and G. Smith, ‘Russia, Ethnoregionalism and the Politics of Federation’, 19:2 Ethnic and Racial Studies (1996), pp. 391–410. 12 See Y. Ghai, ‘Chinese Minorities: Autonomy with Chinese Characteristics’, in Y. Ghai (ed.), Autonomy and Ethnicity: Negotiating Claims in Multi-Ethnic States (Cambridge University Press, Cambridge, 2000); and Paul, J., ‘Ethnicity and the new Constitutional Orders of Ethiopia and Eritrea’, in ibid.

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PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES legitimate purposes, such as employment with the expectation of settlement.13 The provision in the ILO Convention (No. 143 of 1975) requiring the abolition of restrictions on migrant workers on access to employment after two years’ residence is widely ignored, even in states which have in the past actively sought labour from outside. In Germany non-citizens do not enjoy the same right to form political parties as citizens; leaders and majority members of a party must be German nationals. Portugal prohibits non-nationals from political activities except with the permission of the government (Article 15 of the Constitution). The law in Switzerland is even worse; non-nationals must secure permission from the cantonal authorities to speak on a political issue at an open or closed private meeting of an association. In principle, non-nationals cannot anywhere stand as a candidate or vote in state or local government elections. Sweden now permits them to vote in local government elections (provided that they have been residents for three years); its lead has been followed by Denmark, Finland, the Netherlands and Norway. The German Constitutional Court has declared that the granting of franchise to nonnationals is unconstitutional, since the Constitution states that ‘all state authority emanates from the people’, the concept of people not including foreigners. That decision has been overruled by a constitutional amendment. In Australia, indigenous peoples (Aborigines) were not declared full citizens until 1962, when for the first time they got the franchise, and in Canada it was not until the 1970s that indigenous peoples were enfranchised. On the other hand, Britain has traditionally permitted citizens of the Commonwealth and the Irish Republic both to contest, and to vote in, national and local elections. The position under international instruments is also far from satisfactory. The ICCPR talks of minorities, but states have often claimed that only nationals are entitled to such rights. However, the UN Human Rights Committee has stated that Article 27 is applicable to non-citizens resident in the state. Whether a group is a minority depends upon objective criteria, and not upon a decision of the state. The UDHR and the ICCPR restrict political rights of franchise, representation and access to public service to citizens, for they belong to a person in respect of ‘his [sic] country’ (Articles 21 and 25 respectively). The UN Declaration on . . . Minorities mentions both national and ethnic minorities, which would cover migrant communities. The tone of European regional instruments was set by the Helsinki Declaration of the CSCE (1975) which refers to the rights only of ‘national minorities’ (s. VII). The Charter of Paris for a New Europe is likewise restricted and the influential Framework Convention for the Protection of National Minorities (1995) also restricts rights under it to ‘national minorities’. None of these instruments defines ‘national minorities’. Two well-known definitions of ‘minorities’ offered by Capotorti and Deschenes in the course of their work for the

13

See generally R. Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment (Clarendon Press, Oxford, 1997).

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YASH GHAI UN restrict it to citizens.14 A fortiori, ‘national minorities’ may be interpreted as referring to citizens. However, Professor Asbjørn Eide, in his article as Special Rapporteur on Minorities, expressed the view that ‘national minorities’ does not refer to ‘citizenship’, but to ‘ethnicity’, although a number of states, particularly Germany, have contested his interpretation.15 Another interpretation of ‘national minorities’ in the European context is that it refers to long-settled minorities, with another European state as the kin state, and is designed to exclude the newer immigrants. Anomalies and injustices arise from the fact, that in this globalized world, large numbers of people live in states of which they are not nationals, but where they expect to live most of their lives. Yet they have no automatic right to the citizenship of these states. Regulations for naturalization as a citizen vary from state to state; and the period of lawful residence before an application can be made varies from five to ten years. In an increasing number of states, citizenship rules are based on the principle of jus sanguinis, that is, the nationality of parents, so that members of a migrant community may remain ‘foreigners’ for generations. The Committee of the Council of Europe recommended to its members in September 2000 to take measures to enhance the security of long-term immigrants, including giving them the possibility of acquiring the state’s nationality. Reviews by the Council of Europe, the OSCE and the UN of citizenship laws enacted by the Czech Republic, Estonia and Latvia after their re-emergence as independent states, which resulted effectively in the loss of citizenship of people who did not belong to the dominant ethnic community, despite long residence, have suggested the limits of the discretion of states to determine citizenship laws. First, the UDHR and the ICCPR give everyone the right to a nationality, and although no specific obligation is placed on a state, this right can be realized only through regulation of state discretion. Second, such restrictive laws may offend the cardinal principle of non-discrimination which lies at the heart of human rights. Third, states in which a substantial number of people are not citizens and are thus not eligible for political rights, are unlikely to satisfy Article 25 of the ICCPR and similar or stronger provisions in other instruments requiring a democratic order.16

14

F. Capotorti, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, UN doc. E/CN.4/SUB.2/1985/31; Deschesnes, J., UN doc. E/CN.4/SUB.2/1985/31. 15 For references and a fuller discussion see Thornberry, P., ‘The UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities: background, analysis, observations, and an update’, in Phillips and Rosas (eds), supra note 6, pp. 29–36. 16 D.F. Orentlicher, ‘Citizenship and national identity’, in D. Wippman (ed.), International Law and Ethnic Conflict (Cornell University Press, Ithaca, NY,)

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PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES 10. ECONOMIC AND SOCIAL RIGHTS The right to participation is meaningless unless a group has the ability and the resources to exercise it. In many countries minorities have been economically or socially disadvantaged. Unless special programmes, such as educational facilities, access to the public service, or sometimes special financial loans, are established to enable them to catch up with other communities, the disparities between them and others increase. Participation assumes security and self-confidence. The importance of minimum levels of education and other social and economic facilities to the exercise of the right to participate is increasingly recognized in studies on poverty and social development (see the Copenhagen Social Development Declaration, 1995). It is at the national level that some progress has been made, although here too the constraints that globalization places on welfare have restricted progress. The constitutions of several countries now require or urge the state to provide economic and social rights, although for the most part they are mandatory only for disadvantaged groups, not necessarily numerical minorities (as in Fiji and Malaysia, where the main beneficiaries are members of numerical majority communities). India and South Africa are two outstanding examples, where the obligations on the state are based on the moral and political recognition of past injustices to particular ethnic or social groups. The recent Fiji Constitution (1997) imposes a legal obligation on the government to institute schemes for preferential policies for poorer communities and groups.17 Hungary has set up a Foundation for Hungarian Gypsies (Roma) and a Coordination Council for Gypsy Affairs to examine social and political problems confronting the Roma. A government decree (1995) obliges ministries to develop Roma programmes in housing, education, employment, agriculture and animal husbandry. Some other countries also practise preferential policies (similar institutions for the Roma have also been set up in the Czech Republic, Romania and Slovakia). 11. FORMS AND MECHANISMS OF PUBLIC PARTICIPATION The most important form of participation is one in which the minority takes part in decision-making, whether legislative, executive or judicial. But participation can also include representations to decision-makers, or consultation before a decision is confirmed. Participation is also important in the implementation of legislative and administrative decisions and policies, as it is in procedures for monitoring and assessing the implementation. A particularly valued form of participation is selfgovernment, where specific matters of special concern to a minority are delegated for policy-making or administration to the minority. Participation can take place at different levels, national, regional and local. 17 The 1997 Fiji Constitution was abrogated by the army following the coup in May 2000. The High Court said this abrogation was illegal and the Constitution is still in force. The army’s appeal against this decision has not yet been heard as this Article goes to press.

17

YASH GHAI There are different modalities to ensure participation. Much of the emphasis is on decision-making bodies, but the role of consultative bodies should not be ignored. In Fiji all legislation relating to matters that might affect the interests of indigenous peoples is referred for comment to a representative body of Fijians. In Finland, Norway and Sweden, there are parliaments for the Sami, which governments have to consult on specified matters, and which may make representations on legislative and policy proposals to the national governments. National Councils for Minorities in Hungary are consulted on bills affecting them, and enjoy a limited veto on legislative proposals. In New Caledonia, the Customary Senate has to be consulted on ‘subjects relating to Kanak identity’. Many governments have set up anti-discriminatory bodies, ombudspersons for minorities, language commissions and equal opportunities institutions to analyse difficulties faced by minorities, to lobby for legislative or administrative reforms, and to empower minorities. People from minority communities are frequently members of such bodies. This gives them valuable access to information, public opinion and policy makers. Participation can also take the form of negotiations over differences between the minority and the state (or other groups). For example in New Zealand, differences over the meaning or implementation of the Waitangi Treaty, which governs the relations between indigenous peoples and the government, are negotiated with the mediation of the Waitangi Tribunal. The Tribunal has played a valuable role in establishing the framework and parameters within which the parties have negotiated. This has been an effective way of empowering Maori communities. Much of the discussion on participation focuses on official bodies. But unofficial bodies can provide a useful forum for consultation with and influence on decision-making bodies. In Croatia the Council of National Minorities, a nongovernmental association, which consists of one member of each of the 14 minorities in the country, complements the work of the parliamentary representatives of minorities. It facilitates dialogue between the government and minorities, examines and gives its opinion on draft laws and other legal acts which concern minorities, and monitors the implementation of provisions for minority protection. This article does not look at all the forms and mechanisms of participation (the Lund Recommendations on the Effective Participation of National Minorities in Public Life sets out a wide variety of them). The focus here is on representation, power sharing, and autonomy or self-government. However, before turning to them, it is necessary to refer to another important basis of participation – the right of access to the public service, which includes the right to employment in state services, recognized by the ICCPR, in Article 25 (c). The importance of equitable ethnic representation in the public service is now well recognized. A great deal of state policy and regulations are made by public servants, and it is appropriate that officials of minorities should be able to participate in these processes. Decisions on policy and implementation are better informed and improve through the input of minorities. The access of minorities to the public service and their relations with 18

PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES state services are greatly facilitated and improved if they can deal with officials from their own community. 12. RIGHT TO LEGISLATIVE REPRESENTATION 12.1. Uses of Minority Representation Representation is a key instrument for participation, enabling voices of the minority to be heard in official bodies. The process of electing representatives acts to mobilize the minority and, depending on the method of election, to reinforce its corporate character, frequently through a political party. At the same time it also strengthens its articulation with the national political system. Representation is an emphatic recognition of a positive right of the minority – to take part in state political processes and to influence state policies. Because, in most democratic systems, governments are formed on the basis of representation, the minority will frequently be able to influence the formation of the executive and indeed to secure membership in it. Even if its representatives do not become part of the government, they are able to play an important role in the political process as part of the opposition. Additionally, they add to the efficiency and effectiveness of the legislature by bringing to the attention of the majority perspectives they would otherwise miss. In general if a minority is small, and represented proportionately, it may not have much influence on politics. In most countries, minorities are under-represented; in the USA African-Americans constitute approximately 12.4 per cent of the population but hold only 1.4 per cent of elected offices; Latino Americans fare worse: although eight per cent of the population, they hold only 0.8 per cent of elected offices, and in Canada indigenous peoples hold only one per cent of elected offices, although they are 3.5 per cent of the population.18 However, the value of representation to a minority also depends on factors other than numbers. Armed with votes or seats, a minority may be able to extract concessions or promises from larger political groups, or even enter into strategic alliances. If there are a number of ethnic groups, a small minority may hold the balance between the larger groups, as in Fiji where the small electorate of Europeans, Chinese and people of mixed race (‘Others’) has wielded disproportionate influence and participation in government for this reason. Even if there is a dominant community, the minority may be able to influence politics, if the dominant community is split into two or more parties, as the Sinhala have been in Sri Lanka. The Swedish People’s Party in Finland has helped to maintain the political influence of the Swedish-speaking minority; its members have been in most governments since 1945 in larger numbers than its population would justify. But it is noticeable that Swedish-speakers have influenced national politics also by joining

18

W. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Clarendon Press, Oxford, 1995) p. 132.

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YASH GHAI national political parties in which they have held senior positions. Here much may depend on the electoral system. Separate representation may enhance minority influence, as in Fiji, but minorities as part of the general electorate can also influence the outcome of national elections, as the Muslims in India are able to (it is estimated that the Muslim vote is decisive in nearly 100 parliamentary constituencies, forcing even the right-wing Hindu Bharattiya Janata Party to woo them). Forms of proportional representation may also enable minorities to influence the outcome of elections (the Tamil influence in Sri Lanka has increased with the shift to proportional representation, particularly in the presidential elections). Parliamentary systems are more prone to minority influences given the system of responsibility, although presidential elections can also empower minorities (as in the 1988 Nigerian elections).19 In bicameral legislatures, representation in the lower house may be more important – contrary to the convention of special representation in the upper house. A number of devices can be used to enhance the value of minority representation. In some circumstances it may be more effective to have representation for purposes of bringing the interests and concerns of minorities to the attention of the legislature. A novel form of representation has been proposed by the Mikmaq Grand Council for the band in the Nova Scotia legislature. It is proposed that a member would be elected or nominated by the Council, to be known as the Treaty Deputy, whose function would be to ensure that the provisions of the Treaty of Peace and Friendship signed in 1752 between Mikmaq and the Crown would not be abrogated. The Deputy would also be able to address general political questions of consequence to the Mikmaq people.20 In order not to affect the democratic process, the Deputy would not have a vote in matters not affected by the Treaty. The inspiration for this proposal may have come from the State of Maine in the USA, which has traditionally allowed two representatives of indigenous groups, elected on a special ballot, in its legislature in order to protect their treaty rights. The provision in the Indian Constitution for nomination of Anglo-Indians to the Upper House was intended to perform a similar function. Representatives of minorities or minority regions can be given a special role in the legislative process. Members from Scotland in the British Parliament have traditionally formed the Grand Scottish Committee to review legislative bills of special relevance to Scotland, and it has been possible even to take one or more readings of the bill in that committee. In Fiji, representatives of indigenous Fijians sit with senior Fijian civil servants in the Fijian Affairs Committee to review legislative proposals of special concern to them before the proposals can be enacted by the Parliament (this provision dates from the time when indigenous Fijians were considered a vulnerable group). Some constitutions go even further and give communal representatives the right to block legislative proposals or to subject them to a special procedure. In Belgium, where members are divided into linguistic 19 See also D. Horowitz, A Democratic South Africa? Constitutional Engineering in a Divided Society (University of California Press, Berkeley, 1991) pp. 184–6. 20 See Turpel, supra note 4, pp. 107–8, on which this account is based.

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PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES groups, the enactment of certain laws requires the votes of two-thirds of each linguistic group, provided that each group has a majority of its members in the legislature at the time of the vote. Another procedure is designed to help the Frenchspeaking minority: when the French linguistic group considers that a bill is likely to impair relations between the French and Flemish communities, three-quarters of its members may raise an objection, whereupon the matter is referred to the Council of Ministers, consisting of an equal number of French and Flemish and operating by consensus. The Council presents a reasoned response to the legislature, either to defend or modify the bill. In Bosnia and Herzegovina, the legislative quorum in the House of Peoples in the Parliamentary Assembly requires three representatives each of Bosniacs, Croats and Serbs. In the second chamber of the Parliamentary Assembly, the House of Representatives, a majority of all members comprises a quorum. Any community can declare that a proposed decision affects its vital interests, which then calls for special procedures for mediation and reconciliation of differences. If the political process fails to resolve differences, the matter is referred to the Constitutional Court. The focus of this section of the Article is on representation in national institutions. However, representation can be secured indirectly, through elections to councils of minorities which have a consultative status with the legislature or the government (as in Croatia, Hungary, Romania and Slovakia). This form of representation can be especially useful when members of minorities, being nonnationals, lack the franchise to vote in national elections. The EU states are encouraged to set up these councils when minorities are otherwise disenfranchised. Second, representation at the local government level to facilitate minority participation is receiving increased attention. In several countries, non-nationals are allowed to participate in local government elections and institutions, and several instruments have drawn attention to the potential of local-level politics for the participation and welfare of minorities. In other instances, national minorities are given rights of self-government if they constitute a majority in a district (as in Croatia and Hungary), and the draft Sri Lankan Constitution (February 2000) not only provides for power sharing at the provincial level but also for cultural councils at the district level. 12.2. Securing Minority Representation: the Electoral System It is only in recent years that consideration has been given to the adaptation of electoral systems to minority representation.21 Two widely different approaches have been advanced on their representation. The first focuses on ensuring representation for minorities by members of the minority, hopefully proportional to their size of the population, either through a national electoral system which will 21

See K.M. de Silva, ‘Electoral systems’, in C. Young (ed.), Ethnic Diversity and Public Policy: A Comparative Policy, (Macmillan, London, 1998); and B. Reilly, and A. Reynolds, Electoral Systems and Conflict in Divided Societies (National Academy Press, Washington, DC, 1999).

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YASH GHAI facilitate this, or, if necessary, by a system of separate representation. The other approach is less concerned with direct minority representation than with their political integration. The distinction is sometimes blurred, for some methods for direct minority representation are compatible with their integration, such as proportional representation (PR). In practice the distinction between systems which do and do not provide for separate minority representation is greater. Of the electoral systems which are not explicitly based on ethnic representation, the most common are the plurality–majoritarian systems and the proportional representation system. The plurality, or first-past-the-post, system, typically used in Britain, the USA and many other countries which have been associated with them historically, is the least favourable for the election of minority representation – unless the minority is sufficiently concentrated in a locality to constitute a dominant group. In Britain, for example, there are relatively few parliamentarians from minority communities, and those usually represent constituencies with significant minority populations.22 Sometimes the first-past-the-post system can yield minority representation if constituency boundaries are changed; such changes have been judicially approved in the USA to allow representation of black people in the Southern states. If minorities are politically well integrated with the majority, their members may well be elected in such a system, as with the Jewish community in Britain. The majoritarian systems are even less favourable to minorities, for a candidate needs to secure at least 51 per cent of the votes to win. The best-known example of a majoritarian system is what is called the ‘two-round system’, under which, if no candidate wins a majority in the first round, a second poll is taken in which voters choose between the two top candidates (as in France and its former colonies, and parts of Europe and Latin America). A variation of majoritarianism is the ‘alternative vote’ (AV), in which electors mark their preference among candidates and if, on the first count, no candidate gets the majority of the first preferences, the candidate with the fewest votes is eliminated and electors’ second preferences are distributed among remaining candidates until a majority winner emerges. There are also several types of PR which aim at relating the number of representatives to the votes cast for particular candidates or parties. The best-known of these systems is the List PR system, under which political parties contesting the elections present a list of their candidates to the voters. The constituency is either the whole state (as in Israel, Moldova, Namibia and Slovakia) or, more commonly, a series of multi-member constituencies. Large constituencies are better for minority representation. The voting is for a party and not a candidate; a party is entitled to the number of seats which corresponds to its share of the vote, so that if it wins 30 per cent of the votes, it gets 30 per cent of the seats, which go to the requisite number of candidates at the top of its list. However, a party has to secure a minimum percentage of votes before it can get any seats; this is known as the ‘threshold’, although a number of countries have no threshold at all – Belgium, Bosnia22

S. Saggar, Race and British Electoral Politics (UCL Press, London and Bristol, PA, 1998).

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PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES Herzegovina, Spain and Switzerland, or none for parties of minority groups, as in Poland and Germany. In some systems, voters are not bound by the ranking of a party’s candidates and may declare their own preference (‘open list’). Experience suggests that a closed list, in which the party leadership determines the order of priority, can be more effective for securing representation of minorities and women. It is also possible to require political parties to nominate a minimum number of members of minority communities (this device has been useful in securing the representation of women as in Nepal). In the PR system, unless the threshold for securing seats is high, a minority can secure representation through its own political party. Thus, as between majoritarian and PR systems, the latter is more likely to result in minority representation and to provide incentives for formation of ethnic parties. In the former system, a member of a minority keen on a political career is more likely to join a ‘mainstream’ party, for the prospects of a minority ethnic party are poor, except in areas, if any, where they are in a majority. The second approach favours designing electoral systems to integrate different communities by creating incentives for political parties to broaden their appeal to attract votes from all communities. The aim therefore is not so much to ensure direct minority representation, as those who are elected are likely to enjoy the support of minorities and thus be moderate in their policies. The rules for the election of the Nigerian President, but not of other officials, under the 1982 Constitution were based on this approach (and has recently been used in Kenyan presidential elections). An electoral system to encourage communal integration was adopted in the 1997 Fiji Constitution, although it retained elements of separate representation. Singapore provides an example of a system which both secures minority representation and attempts to integrate communities. A number of constituencies, called the Group Representative Constituency (GRC), return either three or four members. A political party which wants to contest in these constituencies has to present a slate of three or four candidates, of which at least one must be from a minority. Electors vote for the slate rather than individual candidates. The justification advanced for this system is that it secures the election of some minority candidates, although its critics saw it as an attempt by the government to stifle opposition parties which would have difficulty in securing enough qualified candidates given the constraints under which opposition parties operate. It is certainly the case that so far all GRC seats have been won by the ruling party.23 In its electoral reforms of 1993, New Zealand altered its system of representation for Maori by giving them the option to vote on a separate electorate or common roll – as more Maoris opted for the common roll, there was a corresponding reduction in separate representation, a provision designed to encourage integration. With this common roll Maoris secured higher representation than in the past, thanks to the PR system that was adopted at the same time. 23 Thio Li-am, ‘The elected president and the legal control of government’, in K. Tan and Lam Peng Er (eds), Managing Political Change in Singapore (Routledge, London, 1997) pp. 107–8.

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YASH GHAI The integrationist approach favours electoral systems which create incentives for political parties to woo support among all communities. This is expected to result in both multi-ethnic and moderate parties. Such systems work best when the votes of the minority can have a decisive influence on the outcome of the elections. This is indeed its drawback, for while preferential voting systems like the alternative vote or the single transferable vote (STV) can give the minority a decisive say, they can do so only if certain population configurations are present. Essentially, not only must the constituency be ethnically heterogeneous, but the majority community in it must be split into at least two political parties of roughly equal strength – as has often happened with the Sinhala parties in presidential elections in Sri Lanka. Unless these conditions exist naturally, they will need to be created through constituency boundary changes to establish balanced heterogeneity, as in Fiji. This raises its own difficulties and is open to political manipulation. If an election system does not work as projected by its proponents, the logic of majoritarianism, on which the system is based, is likely to result in an under-representation of minorities. 12.3. Communal Representation The preoccupation with minority representation in recent years, particularly as part of complex constitutional schemes for the governance of multi-ethnic territories, has led to provisions for separate representation for ethnic groups, particularly for minorities (called here ‘communal representation’), as in Croatia, Finland, Hungary, Romania and Slovenia. Communal representation was the cornerstone of the British colonial system, but at independence most former colonies abolished this system of separate representation, the outstanding exceptions being Cyprus and Fiji. This system is also to be found in China (where minorities are deliberately overrepresented), New Zealand and Samoa. The revival of communal representation in the face of considerable criticism calls for an assessment, which I do by examining a number of examples of its adoption. 12.3.1. Cyprus From the very start of representative politics in Cyprus, Britain introduced communal representation. Such was the bitterness between the dominant Greek community and the minority Turkish community (fuelled no doubt by their ‘kin states’) that independence could only be secured through an intricate Constitution built around far-reaching consociational principles. The Greek (including the Maronite community) and the Turkish communities were treated as separate entities, and the entire system of representation, government, administration and social services was based on proportionality, with Greeks counting for 70 per cent and Turks 30 per cent of the population. This was based on a slight over-representation of Turks. The House of Representatives consisted of 50 members, of whom 35 were Greek and 15 Turkish, elected on a communal basis. The President of the House had to be a Greek, the Vice-President a Turk. In addition to the full House, there were also communal chambers of Greek and Turkish members respectively, which had 24

PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES wide law-making powers in educational, religious and personal affairs, and other matters delegated to them by the House. The President of Cyprus had to be Greek, elected by Greek voters and the Vice-President a Turk who was elected by the Turks, each with their own special powers. Ministerial posts were also divided among the two communities; Greek ministers were appointed (and removed) by the President; the Vice-President performed similar functions in relation to Turkish ministers. The system produced extreme rigidity; the Greeks resented it for giving disproportionate powers to Turks, and Turks resented the permanent dominant position of the Greeks. The first wanted to change the Constitution; the second boycotted arrangements agreed at independence (in which, it should be stated, the decisive influence was of metropolitan powers). Cypriot politics were also complicated by political and military interventions of Greece and Turkey, which eventually spelled the end of the Republic as described above. 12.3.2. India The Indian National Congress which led India to independence was opposed to ethnic electoral rolls and representation which the British had introduced in 1909. It would have been willing to contemplate them if Pakistan had not been carved out of the subcontinent as the homeland for Muslims; separate rolls having been devised primarily for Muslims. Austin says that the: ‘members of the Constituent Assembly had one predominant aim when framing the legislative provisions of the Constitution: to create a basis for the social and political unity of the country’.24

He summarizes the situation at independence as follows: ‘not only did the provinces lack even a semblance of popular government . . . but the small electorate that existed was itself thoroughly fragmented . . . split into no less than thirteen communal and functional compartments for whose representatives seats were reserved in the various parliamentary bodies’.

Similar distinctions were applied in the indirectly elected central legislature. The Constituent Assembly did agree to one form of special representation, for scheduled castes and tribes, as part of the package of affirmative policies for these communities. The Constitution expressly provides for reserved seats for each of these communities in proportion to their share of the population in both the lower house at the national level and in the states (Articles 330 and 332 respectively; arguably seats can be reserved for them in other political bodies under Article 15 of the Constitution).25 In India’s parliamentary systems, lower houses are the more 24

G. Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press, Bombay, 1972) p. 144. 25 M. Galanter, Competing Equalities (Oxford University Press, Delhi) p. 45, n. 15. The following account draws heavily on Galanter.

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YASH GHAI important component of the legislature, as it is there that governments are formed and removed. This provision was originally to last for ten years, but it has been renewed ever since. The scheduled castes constitute about 15 per cent of the population, and the scheduled tribes seven per cent, so that they enjoy significant guaranteed representation. The law also provides that scheduled castes and scheduled tribes candidates are required to make smaller deposits. Separate electorates are prohibited for the national and state legislatures and the Supreme Court has interpreted the Constitution to prohibit separate electoral rolls at local levels.26 All registered voters may vote in constituencies in which seats are reserved for scheduled castes or scheduled tribes. The Delimitation Commission, an independent body, determines in which constituencies seats will be reserved. There is a single criterion for the selection of constituencies for scheduled tribes – the concentration of its population. Since the scheduled tribes still live in particular areas, these constituencies contain a high proportion of their population, more than 50 per cent in more than half the constituencies so reserved, so that the bulk of scheduled tribes (about 70 per cent) would live in such constituencies. As for scheduled castes, who are more dispersed, reservations have to be spread throughout the country, and to be located, in so far as possible, in constituencies in which the proportion of their population to the total is comparatively large. Thus constituencies with reserved seats for scheduled castes contain proportionately fewer of them than is the case with scheduled tribes. The largest contain about 30 per cent. There is considerable opposition from other communities to the designation of the constituencies in which they live as reserved constituencies, as it deprives their members of the right to the seat. Galanter says that on the whole, constituencies reserved for the scheduled castes ‘tend to be political backwaters – slightly less urban, with less newspaper circulation and a slightly greater percentage of agricultural labourers’.27 Scheduled tribe constituencies tend to be more isolated and less urban than general constituencies. The effect of the reservations is to ensure the representation of these two communities, who are otherwise politically and economically marginalized. This is particularly important for the scheduled castes who do not form a majority anywhere. As over 20 per cent of seats are held by the members of these communities, all major parties have an interest in promoting candidates from them. The candidates likewise have an incentive to cast their appeal beyond their own communities, particularly in the scheduled caste constituencies. This has helped to integrate scheduled caste and scheduled tribe members into the constitutional and political system, but this result has perhaps been achieved at the expense of abandoning particular advocacy of the claims of their own communities. Nevertheless, there are parties which are based predominantly on their support, particularly at the state level, where their members have achieved high office.28 It is 26

Nain Sukh Das v. State of UP, AIR 1953 SC 384. Galanter, supra note 25, p. 48. 28 O. Mendelsohn, and M. Vicziany, ‘The Untouchables’, in O. Mendlesohn and U. Baxi (eds), The Rights of Subordinated Peoples (Oxford University Press, Delhi, 1994). 27

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PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES fair to say that the reservations have given the two communities considerable political clout. It has facilitated their entry into the government and their lobbying has been crucial for the maintenance and improvement of other affirmative action policies, which for the most part are authorized but not mandatory. 12.3.3. Bosnia and Herzegovina The Republic of Bosnia and Herzegovina, officially named Bosnia and Hercegovina, is composed of two Entities, 1) the Federation of Bosnia and Herzegovina and 2) the Republika Srpska. Many important powers are vested in the Entities, whilst the government at the level of the state has powers which are necessary to constitute and exercise external aspects of state sovereignty and is responsible for key issues, such as human rights protection. The Constitution is built around the concept of ethnic communities and includes both individual rights of citizens and very strong provisions for collective rights of the three main ethnic groups, called constituent peoples. Arrangements for representation and power sharing take the three main ethnic communities as building blocks, carrying forward the proposition stated in the Preamble that Bosniacs, Croats and Serbs are ‘constituent peoples’ of Bosnia and Herzegovina. ‘Others’, and ‘citizens’ are mentioned only in passing. Professor Pajic implies, critically, that this makes these three communities, rather than the people as a whole, the source and bearers of sovereignty.29 The Parliamentary Assembly has two chambers, House of Peoples and House of Representatives. The House of Peoples has 15 Delegates; these are five Bosniacs and five Croats from the Federation of Bosnia and Hercegovina (selected, respectively, by the Bosniac and Croat Delegates to the House of Peoples of the Federation) and five Serbs from the Republika Srpska (selected by the National Asembly of Republika Srpska). (Article IV). This means that Serbs in the Federation, Bosniaks and Croats in Republika Srpska and minorities across the whole of Bosnia and Hercegovina are excluded from standing for office for the House of Peoples. Nine members of the House of Peoples constitute the quorum, so long as there are at least three from each constituent people. The House of Representatives has two thirds of its members elected from the Federation of Bosnia and Hercegovina and one third from Republika Srpska; a majority of all members constitutes a quorum. The result of these arrangements is that politics is entirely communal, and almost perforce political parties are ethnically based. Parties get together in Parliament or government only after the elections. The system creates incentives for parties and their leaders to intensify appeals to narrow ethnic interests, which in some cases is linked to their kinsfolk in other states, which does little for the unity of the country. In the 1996 elections, the most extreme ethnic party in each community won the elections, leaving their leaders the impossible task of finding a 29 Z. Pajic, ‘A Critical Appraisal of the Dayton Accord Constitution of Bosnia and Herzegovina’, in W. Bendek (ed.), Human Rights in Bosnia and Herzegovina after Dayton: From Theory to Practice (Kluwer Law International, The Hague, 1996).

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YASH GHAI common purpose.30 The relevance of this form of representation for public participation will become clear when power sharing in Bosnia and Hercegovina is discussed later in this Article. 12.3.4. Fiji In Fiji one of the most difficult questions that the leaders of the different ethnic communities had to resolve at independence was the electoral system. Fiji has now experienced three different electoral systems, and is about to design a fourth. The 1970 (independence) Constitution was dominated by communal seats and communal voting. Although there was provision for national seats, their structure was still based on an ethnic allocation of seats, while the logic of communal seats prevailed over the logic of national seats which was intended to provide a basis for non-racial politics. There were 52 members: 27 were elected on communal franchise (12 by indigenous Fijians, two by Indo-Fijians and three by general electors, principally Europeans and their part descendants and Chinese); 25 (‘national seats’) were allocated communally (10 each to indigenous Fijians and Indo-Fijians and five to the general electors) but all the voters in the community voted for them – hence the system came to be known as ‘cross-voting’. Each voter had three votes in the contests for national seats, each to be cast for members of different ethnic groups. The rationale of national seats was to integrate ethnic groups politically, promote inter-ethnic parties and prepare for the transition to a complete common roll. However, the logic of the system was dictated by the communal rather than the national seats. Politically, parties were organized essentially on ethnic lines, in order to compete for communal seats. There was one dominant party for each of the communities. While the need to contest national seats compelled each of the major parties to extend its appeal beyond the community they principally represented, for the most part this was not successful, and few attracted votes from other communities. National seats were decided principally by communal votes; thus, indigenous Fijian candidates sponsored by the dominantly Indo-Fijian National Federation Party were successful as a result of Indo-Fijian votes, and so on. This was possible because of the concentration of the two major communities in different constituencies. In this way cross-voting seats became an extension of communal seats. The Alliance Party (the dominant party of indigenous Fijians) was a partial exception to this trend. It attracted a significant percentage of Indo-Fijian votes, especially for the cross-voting seats, in which it often achieved over 20 per cent of the vote. By contrast the National Federation Party commonly gained less than five per cent of indigenous Fijian votes. However, the Alliance Party had to maintain its support among indigenous Fijians if it was to remain a serious political contender, especially as militant indigenous Fijian parties were bidding for the support of its 30

Supra note 2.

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PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES principal electorate. The logic of the system compelled the Alliance Party progressively to champion exclusively indigenous Fijian interests. The 1990 Constitution, adopted by the military government following the 1987 coups, abolished national seats. It not only removed any vestiges of cross-voting, completing the separation of ethnic groups (and making politics almost totally ethnically based), but also aimed to ensure the permanent and undisputed rule of indigenous Fijians. It gave a disproportionately large representation to them in both houses of Parliament (in the House of Representatives 37 out of 70 seats being reserved for them). In addition it provided that a Prime Minister had always to be an indigenous Fijian. It also dispensed with the rather awkward, residual agenda of the 1970 Constitution that the ultimate aim was the development of a multi-ethnic Fiji. The sidelining in this way of the Indo-Fijians had the predictable effect of releasing factionalism within the Fijian community that had been largely contained under the more balanced allocation of communal seats in the 1970 Constitution. The 1997 Constitution (overthrown in May 2000) largely abandoned that approach, but it continued with significant reliance on communal representation. It provided for 25 open seats in the House of Representatives (out of a total of 71) which were open to candidates of any ethnic group and for which all voters resident in the constituency could vote, and 46 communal seats (to be voted communally) divided between the ethnic communities. The voting for these, as for communal seats, was by the alternative vote system. While in communal seats this method of voting served principally the purpose of ensuring that the winning candidate enjoyed clear majority support, its purpose in open seats was to provide incentives for political parties to cooperate across ethnic frontiers. Under the AV system, a voter has to declare his or her preference among all the candidates. Since a winning candidate has to have an absolute majority, the second and subsequent preferences of a voter can be crucial in determining the result. This method thus opens up possibilities of arrangements between political parties for the trade-off of the second and subsequent preferences of their supporters. The logic of the system might well have led to multi-ethnic parties (as was the expectation of the Reeves Commission which recommended it). Additionally, it was expected that candidates with moderate views would have an advantage over those espousing extreme views, as they would have a chance of capturing more second preferences.31 The results of the first general election seemed to have vindicated some of the assumptions of the Reeves Commission. Two broad coalitions of communal parties were formed and contested the elections. However, it was not only moderate parties with conciliatory policies that tended to trade preferences. In fact the more ethnically conciliatory coalition lost the election, negating the assumption that, even if an extremist party may get a significant proportion of first preferences, the more moderate parties would get the second and subsequent preferences. As an observer of the results has commented: 31

Fiji Constitution Review Commission (the Reeves Commission) 9.150–152 and 10.31– 10.109; see also Horowitz, supra note 3.

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YASH GHAI ‘Where racial polarisation is particularly sharp, it is easy to envisage a situation where a majority of an ethnic group’s first preferences are picked up by the militant flank party, which also attracts, at the second, third or subsequent count, the preference votes from eliminated more moderate parties representing the same ethnic group. Here the AV system could serve, not as a vehicle for inter-ethnic compromise, but as a means of cohering a 32 politically fragmented ethnic group around an extremist position.’

A major party with predominant Indo-Fijian support failed to secure a single seat, although its share of the communal vote was over 32 per cent. It does not seem therefore that the electoral system led to cross-ethnic voting on any scale, nor to any proportionality, but the logic of open seats on the AV system did lead to multiethnic coalitions.33 Unfortunately it is not possible to make a reliable assessment of this interesting system, for it was tried only once. But the experience may reflect limits of electoral designs and the ability of voters to handle elaborate voting systems. 12.4. Discussion Where both the majority and minorities are agreed that minorities should be represented separately, there may be no objection to communal electorates. But the case studies examined in this Article raise doubts as to whether separate representation in general is desirable. A particularly acute observer of constitutional politics, Stanley de Smith concluded that communal seats tend: ‘to magnify existing communal differences, in as much as communities are stirred to fuller self-consciousness and electoral campaigns are dominated by appeals to communal prejudices; and new communities discover themselves as further claims to separate representation are lodged’.34

It is exceedingly hard to establish national parties, necessary for political integration, when voting is communal. Communal forms of representation often irritate and provoke majority groups, although this is not in itself a reason for not adopting them. Members of minorities have fewer prospects of high office if they rely on their own separate parties and representation than if they were members of national parties (unless there are provisions for power sharing). Communal representation also tends to obscure social and economic interests that sections of different communities have in common. Moreover, leaders and parties of the majority party have little incentive to woo minorities or design policies to suit them. A better approach would be to consider devices whereby, within an integrated electoral 32

J. Fraenkel, ‘The triumph of the non-idealist intellectuals? An investigation of Fiji’s 1999 election results’ (unpublished, 2000). 33 S. Prasad, ‘Fiji 1999 general elections: outcome and prospects’, in A. Haoon Akram-Lodhi (ed.), Confronting Fiji Futures (Asia Pacific Press, Canberra, 2000). 34 S. De Smith, The New Commonwealth and Its Constitutions (Stevens, London, 1964) p. 118.

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PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES system, there are legal requirements or political incentives to secure representation of minorities, through the list system in PR or mandatory nomination of a minimum number of minority candidates. 13. POWER SHARING It is increasingly realized that, although an important basis for participation, representation by itself does not allow a minority to participate significantly in public affairs. Whatever the electoral system, its members would be too insignificant to influence policy, much less stake a claim to membership of the government or other key institutions, unless the minority held the balance between the major parties contending to form a government, as has often happened in Israel, for example. Ways must therefore be found for the minority to share in government and administration, through membership of the cabinet and other policy making bodies, and in the public service, including the judiciary. Power sharing refers to a system in which all major ethnic or political groups are entitled to participate in government and to a proportion of positions in the public service. It also tends to establish harmony and stability, through a partnership of ethnic groups. The best-known example of power sharing is consociationalism, whereby ethnic groups are recognized as political entities, and as such are entitled to a large measure of self-government in matters deemed to be internal to them, and to a share in power when matters of common interest are being resolved, at the national level. However, consociationalism, which has many critics, is not the only method of power sharing. It is possible to base power sharing not explicitly on ethnicity but on political parties, as in the transitional arrangements in South Africa and under the 1997 Fiji Constitution, for these arrangements also tend to encourage political integration of ethnic groups. Power sharing in consociationalism relies on a number of other devices as a package, but simpler forms of power sharing can be established, geared principally to giving minorities a share in power at the national and local levels. Arrangements for power sharing can be stipulated in the constitution, as they would under consociationalism, or be left to political understandings or conventions, as in India where it is normal to include at least a member of scheduled communities in the cabinet, and in the US Supreme Court where at least one Jewish and one black judge would normally be expected to hold office. But the important point in such systems is not so much a convention to ensure participation of minorities as that minorities are involved, and integrated, in mainstream politics through parties and other mechanisms. While in the West, to a considerable extent, minorities have had access to power through a non-ethnic political process, in many parts of Asia and Africa minorities have been denied such a role. Hence the current interest in consociationalism. In general, there is considerable agreement that power sharing is desirable, particularly as minorities would otherwise remain marginalized. However, some criticism is made of arrangements which seek to be inclusive, where all key groups are in government, on the grounds that the government is not subject to sufficient 31

YASH GHAI scrutiny and is less accountable. It is also said that coalition governments, which is what power sharing entails, are weak and inefficient as it is difficult to agree on policies and their implementation. Compulsory quotas in the public service, another consequence of power sharing, may arguably lead to the appointment and promotion of incompetent candidates. But even among those who support power sharing, there is considerable disagreement on principles and modalities. Some of these principles and modalities, such as federalism or other forms of autonomy, are discussed below. There are few studies that focus on different methods of power sharing and their relative worth.35 A review of some experiences of power sharing may help us to assess the value of this way of empowering minorities. 13.1. Cyprus Power sharing was instituted principally by vesting specified powers respectively in the President and Vice-President of the Republic, the former of which must be Greek and the latter Turkish, elected by their own communities. The President appointed (and could remove) seven Greek ministers; the Vice-President three Turkish ministers. The President and the Vice-President had to make some decisions jointly, but decisions on the most important matters, which applied on a communal basis, were made by them separately. This meant that on many matters there were different regimes for the communities, and that these matters were under the jurisdiction of each community. The President and the Vice-President each had a veto over specified legislation, primarily on matters of common interest to the communities. This ensured that no legislation in these areas could be passed over the opposition of either community. Similar vetoes operated also in the Council of Ministers. Such a system of power sharing placed more importance on differences rather than commonality of interests. It was likely to produce conflict and deadlock, and that is precisely what it did. The President acted, or perhaps more charitably, was compelled to act several times in contravention of the Constitution. There were frequent disputes about the allocation or exercise of powers. The constitutional arrangements collapsed under their own weight, assisted by outside intervention. The collapse led to communal violence and transfers of population, so that Cyprus is now divided between a northern Turkish area and a southern Greek area, and the search, under the auspices of the UN, has been under way for years for a federal solution to the division of territory and the antagonism between the communities. 13.2. Northern Ireland Power sharing has been a recurrent theme in Northern Ireland. In 1973 the British Parliament, in a shift from majority rule, provided that autonomy for Northern Ireland would depend on the formation of a broadly based executive, accepted by 35

But see Sisk, supra note 2.

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PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES the population, based on representation of both communities (the Northern Ireland Constitution Act). However, the government (and the system of autonomy) was short-lived as it was opposed by the Ulster Unionists who won 11 out of 12 seats in the election to Westminster and thus discredited the power-sharing arrangements (the opposition being not so much to power sharing as to a subsequent agreement between the UK, Irish and Northern Irish political parties to the ‘Irish Dimension’ through the Council of Ireland). In 1982 another attempt was made to move towards autonomy. At first the functions of the Northern Ireland Assembly were consultation, scrutiny and deliberation, particularly in relation to legislation proposed by the British government in Parliament. However devolution would take place if 70 per cent of the Assembly members supported it or if both communities supported it; full devolution would require an executive acceptable to both communities, implying some form of power sharing. This system was stillborn since the ‘nationalists’ (those supportive of closer a connection with the Irish Republic), opposed it, as it did not provide for something like the Council of Ireland. The next move towards power sharing was the Belfast Agreement (the Good Friday Agreement) in 1998, which has the support of the governments of the Irish Republic, the UK and the USA. At the first meeting of the Assembly all members are to register their identity in one of three categories – nationalist, unionist or ‘other’. The election of the First Minister and the Deputy First Minister is through cross-voting, in which there are three separate forms of voting – by all the members, by the unionists and by the nationalists. Candidates have to secure the support of the majority of all three groups, thus placing a premium upon moderate candidates. Other ministers take office in proportion to the size of their parties’ representation in the Assembly. The First and the First Deputy Ministers form a diarchy, so that if one resigns, the other also loses office. They cannot be removed by the Assembly. The principle of power sharing is carried into the Assembly where, for key issues, decisions are made not by simple majority voting but by majority of both nationalists and unionists, or, if agreed, by a majority of the votes of members, provided that it includes 40 per cent of each of the members of the these communities. While the antecedents of this system are understandable, it may tend to entrench religious/political differences, at a time when a substantial proportion of the people of Northern Ireland are willing to drop communal differences. It would give power to those who are adept at manipulating religious differences and nationalist politics. This system unfortunately downgrades the votes of ‘others’, and thus is less favourable to those who work across communities. 13.3. South Africa There were spurious efforts at ‘power sharing’ in apartheid South Africa. ‘Bantustans’ were created, ostensibly to empower black Africans in their ‘homelands’, and the 1982 Constitution established different legislative chambers 33

YASH GHAI for whites, Indians and Coloureds, and the concept of ‘own’ and ‘common’ affairs, whereby each chamber had jurisdiction over communal affairs, and jointly over common affairs. The whole system, a disguise for white domination, worked under the hegemony of the white chamber. During the discussions on, and negotiations for, future constitutional dispensation after the collapse of apartheid, demands for power sharing were made by sections of the white, particularly Afrikaner, community and the Zulu-based Inkatha Party. Although contrary to its non-racial policy, the African National Congress (ANC) was prepared to accept it to ensure democratization. These concessions for the government of national unity were included in the powersharing provisions of the 1993 (transitional) Constitution. Certain executive powers were vested in the President, elected at a joint sitting of Parliament, to be exercised at his or her discretion; others had to be exercised after consultations with the cabinet (sec. 82). Each party which had at least 20 seats in the National Assembly was entitled to seats in the cabinet proportionate to its seats in the Assembly. In addition, each party which had at least 80 members was entitled to nominate an Executive Deputy President. The role of Deputy Presidents was central to the scheme of power sharing. The President had to consult with them on a number of matters, including the development and execution of government policies, the management of cabinet business, appointment of ambassadors and negotiations of treaties, appointment of commissions of enquiry, holding referenda and pardon or reprieve of prisoners (sec. 82(2)). Powers for the allocation and appointment of ministries were to be exercised ‘in the spirit underlying the concept of a government of national unity’ and through consensus, but in the event consensus could not be achieved, the decisive say rested with the President on the allocation of ministries and with party leaders on appointment of ministers from their parties (sec. 88(5)). The Constitution stated that the cabinet: ‘shall function in a manner which gives consideration to the consensus seeking spirit underlying the concept of a government of national unity as well as the need for effective government’. (sec. 89(2))

The Constitution also provided for the collective responsibility of the cabinet, especially necessary in case of forced, multi-party government. If a minister failed to act in accordance with presidential instructions, the minister could be removed by the President, after discussions with his or her party leader (sec. 92(2)). The provisions for power sharing enabled a measure of bipartisanship in the transition from apartheid towards a non-racial, democratic South Africa. It should be noted that the criterion for power sharing was not ethnic, but it was clearly assumed that it would facilitate the inclusion in government of all ethnic groups (as it did). But it should also be noted that members of all ethnic groups would have been represented even if only the ANC, the party with a substantial majority, had formed government, such were its multi-racial credentials. The provisions did not lead to the accentuation of the ethnic base of parties; all major parties attempted to broaden the ethnic base of their support. It is also worth noting that there were no vetoes for 34

PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES participating parties or mechanisms to block decisions (as is the current preoccupation of European schemes of power sharing). The Constitution specifically mentioned the need for efficiency. The experience of power sharing did indeed show a concern with efficiency and the need to maintain consensus through what was a difficult and testing time for South Africa‘s transition. The cabinet was able to maintain a remarkable, and surprising, degree of cohesion. Nevertheless, party leaders in government had difficulties in dealing with their own backbenchers, particularly when trying to sell them compromises reached in the cabinet. This was a problem for all parties, but especially for the ANC, which had enough numbers to have constituted a government on its own in a straightforward majoritarian system. It was this restlessness that persuaded its leadership not to support the continuation of power sharing arrangements when the final Constitution was negotiated. 13.4. Fiji One of the major political problems that Fiji has faced since independence is that its first two constitutions (1970 and 1990) included communal representation in the legislature but provided for government by the majority party. This produced a government composed predominantly of indigenous Fijians and deprived IndoFijians of many rights of political participation – producing acute political tensions. After the failure of the racist Constitution of 1990, there developed wide consensus among leaders of major political parties that all communities should share in the powers and functions of the executive, reflected in the 1997 Constitution. The President appoints as Prime Minister the member of the House of Representatives who in his/her view commands the confidence of the House (sec. 98). The Constitution entitles any political party which wins ten per cent of the seats to join the cabinet (sec. 99(5) and (7)). If the Prime Minister needs the support of other parties to form a government, these parties would be in a strong position to negotiate policies that would bind the government. If the Prime Minister’s party has a majority or substantial numbers, it may exercise a hegemonic role, and other parties may be compelled to comply with its priorities. Smaller parties (those with fewer than eight members) would be less favourably placed than before, for previously they might have held the balance of power. However, the Constitution permits the Prime Minister to appoint as minister a member of such a party, but only by sacrificing a ministerial post from his or her party’s quota (sec. 99(6)). The Prime Minister appoints ministers (sec. 99(1)), although when appointing people from a participating party, he or she has to consult with its leader. The Prime Minister alone decides on the allocation of portfolios (sec. 103) and the dismissal of ministers (sec. 99(1)). He or she would effectively have to consult the leader of the minister’s party in the case of dismissal, for in replacing the minister, the Prime Minister would have to consult that leader. In most Westminster-type systems, the Prime Minister is no longer, as in constitutional theory, primus inter pares (first among equals), but is effectively the government. This may not create a major 35

YASH GHAI constitutional problem if the government consists of one party (whatever the strains within the party), but could become problematic in the case of coalitions. In the case of Fiji under the new Constitution, the problems and difficulties may be even greater: for one, the purpose of multi-party government is power sharing – a purpose which could be negated if the Prime Minister were not to consult other partner parties and, second, multi-party government is mandated by the Constitution, and is not a voluntary arrangement. A ‘forced marriage’ of this kind requires the utmost sensitivity, consultation and compromise, and therefore effectively changes the nature of the office of the Prime Minister. The provisions for power sharing came into effect only after the general elections in May 1999. A coalition of ethnic parties under the leadership of the Fiji Labour Party, the most multi-ethnic party, formed the government. There is evidence that the cabinet was better placed than any previous one to appreciate the concerns of all communities and to reconcile their claims. The government brought together a wide variety of interests and, on delicate and difficult questions like land, the presence in significant numbers of representatives of all major groups ensured the avoidance of narrow ethnic approaches. Unexpectedly, one party, the Labour Party, won enough votes to form a government of its own in a normal parliamentary system, adversely affecting the balance of power conducive to power sharing. The largest party of indigenous Fijians, Soqosoqo ni Vakavulewa ni Taukei (SVT), was not in the government – for a variety of confusing reasons. The absence of the largest party of indigenous Fijians was unfortunate, given the aims of the Constitution, as it is also the party of the previous government, associated with the coup. Its entry into the cabinet could have helped to consolidate the improvement in ethnic relations, while in opposition it saw its role as to challenge the government constantly, often on ethnic points, and indeed to destabilize it, as its leaders successfully did when they joined the forces for the coup in May 2000. 13.5. Bosnia and Herzegovina The Constitution of Bosnia and Herzegovina (Annex 4, Dayton Peace Agreement) provides for extensive power sharing. The Presidency, in which executive power is vested, consists of three people, elected directly by each of the three main ethnic communities, or constituent peoples. Decisions are by consensus, giving each community a veto. Similar provisions apply for appointments to other public bodies, including the Constitutional Court and the Board of the Central Bank. The chair of each legislative chamber rotates among the representatives of the three constituent peoples. Voting rules ensure that each of the three main ethnic communities are involved in all decisions. Any of the three sets of constituent peoples can declare that a proposed decision affects vital national interests, triggering special procedures for mediation and reconciliation of differences. If that fails, the matter is referred to the Constitutional Court. Commenting on the centrality of ethnicity to these arrangements, Pajic observes that preoccupation: ‘with the rights of ethnic groups reflects the transition from 36

PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES communist to nationalist collectivism, where the nepotism of the “one and only” ruling party is replaced by the despotism of presupposed groups’ ethnic interests’.36 Both parliaments and Entity governments are required to have a proportional ethnic balance, and distribution of key political functions is along ethnic lines. Ironically, in this preoccupation, the rights of national minorities are seriously downgraded or ignored (as for example, in the restriction of the office of the Presidency, or legislative or executive vetoes to Bosniaks, Croats and Serbs). Rights of individual citizens, as citizens rather than as members of a particular ethnic group, are also limited. Given this complex process of decision-making, it is not surprising that numerous deadlocks have occurred. The state level government is seriously handicapped in its capacity to make or execute policy. The Constitution provides for a key role for foreigners. Three judges of the Constitutional Court are foreigners, selected by the President of the European Court of Human Rights; and eight out of 14 members of the Human Rights Chambers are also foreigners. The first Governor of the Central Bank also had to be a foreigner, appointed by the International Monetary Fund. The highest executive power and key policy powers are vested in the Office of the High Representative, appointed in accordance with UN Security Council’s resolutions; his mandate covers monitoring the implementation of the Dayton Peace Agreement and in particular the civilian aspects (Annex 10). Due to differences within the collective Presidency and the unwillingness of each of them to take decisions that might be resented by his or her community, many matters end up on the desk of the High Representative. 13.6. Discussion Most of these case studies suggest various difficulties about power sharing. The majority group may be reluctant to share power if it considers that it can or should form government on its own. At best it is prepared to accept other groups in a subordinate position, and members of these groups may come to be looked upon as stooges of the majority community. Decision-making can be hard, especially if each ethnic group is vested with vetoes. The accountability of the executive suffers as most important groups are in government. Cyprus, Fiji and Northern Ireland show that either the conflict is introduced into the government itself or that those outside it are frequently able to mobilize ethnic unrest. Power sharing is difficult when there are only two major communities, or where there are no traditions of democracy or tolerance. The typical form of power sharing, consociationalism, suffers from particular difficulties: it assumes that groups are driven by primordial sentiments and have an unchanging identity, that communal interests prevail over economic and professional interests, and that within each group there is political consensus on policies and ethnic relations. It tends to rely too much on cooperation among elite groups, and thus to be unstable. On the other hand, there is considerable evidence 36

Pajic, supra note 29, p. 39.

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YASH GHAI that a government based on power sharing principles is able to handle ethnic conflicts better than a more exclusive government. Power sharing has also played a useful role in transition to democracy in ethnically divided or war-torn societies. 14. AUTONOMY Autonomy is a device to allow minorities claiming a distinct identity to exercise direct control over affairs of special concern to them while allowing the larger entity to exercise those powers which cover common interests. There are two basic types of autonomy: territorial or group. Territorial autonomy can take the form of federation (such as Bosnia-Herzegovina, Canada, India, Nigeria, Switzerland) or autonomy for one or two regions only (as in Åland, Chittagong Hill Tracts, Greenland, Kashmir, Mindanao, New Caledonia, Scotland, South Tyrol). Territorial autonomy for a minority is possible when the minority is concentrated in one region of the country and constitutes a majority within that region. A particular advantage of territorial autonomy, being based on the spatial principle, is that it enables ethnic problems to be solved without ‘entrenching’ ethnicity. However, some forms of autonomy may indeed entrench ethnicity, as with reservations or tribal areas, or the communist ‘republics’, under the dominance of titular minorities, as in the former Soviet Union and Yugoslavia, where the cultural and political hegemony of the group may serve to sharpen boundaries against outsiders. When a minority is not geographically concentrated, it is possible to grant group autonomy to it over specified matters such as culture, language, religion and personal law (Muslims in India; linguistic groups in Belgium; national minorities in Estonia, Latvia, and Hungary; Arabs in Israel). Members of the group, or, where self-identification is permitted, registered members of the group, wherever they may be living in the state, are bound by regulations made by, normally, a council of the group in respect of matters delegated to it. Both territorial and group autonomies give the minority or the territorial community the right to legislate on and administer certain matters, usually to the exclusion of the national authorities. Group autonomy normally encompasses limited, specific matters, unlike territorial autonomy where transferred powers may be extensive. The territory or the group may also have the power to raise revenue through taxation or other measures binding its members, and will frequently also receive financial transfers from the central authorities. Regional institutions are established for the exercise of territorial autonomy, covering legislative and executive functions, and sometimes also judicial and public service functions. In this way the minority and other residents are able to exercise a wide range of participatory rights in the region. Group autonomy may be exercised through a representative council, and through it and other mechanisms, its members will be able to participate in affairs which are vested in the community. Sometimes, as most extensively in Belgium, it may be possible to combine territorial and group autonomies.

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PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES 14.1. Territorial Autonomy Autonomy enables fair representation of minorities in the regional legislature and the executive. Autonomy arrangements would probably also provide for the minority’s language to be the official regional language. Primary and sometimes secondary education is also likely to be the responsibility of the regional government, facilitating the preservation and development of minority culture. Most autonomy arrangements provide financial and administrative resources for the local government to carry out its functions – crucial to effective participation. Autonomy arrangements, especially in the federal form, provide for regional representation at the centre, and thus institutionalizes regional influence at the centre. This, rather than significant provincial powers, is in essence the South African strategy, for through the second chamber, provinces are represented at the centre and determine national policy. Sometimes representation at the centre is not considered important, especially if the region is small and its primary concerns are local (as in Åland or Puerto Rico, or for the Sami in Scandinavian countries). Autonomy can comprise a wide variety of arrangements regarding structure and powers. The flexibility of the federal device in terms of the division of powers and the structure of institutions enables various kinds of accommodations to be made, as it is more hospitable to compromises than other kinds of minority protection. It can also allow for a gradually increasing transfer of powers. It ensures better prospects for preserving minorities’ culture (language, religion, etc.) and resisting state homogenizing policies and practices. It is a device to control local physical and natural resources, although the problem of natural and other resources is not easily resolved. However, state control over national revenue enables other regions to be compensated in other ways to maintain a measure of equity necessary for national unity. Autonomy has the potential to accommodate the demands of linguistic or cultural minorities. The first important example of the use of federalism to give a minority significant participation rights was the division of Canada into two provinces of the largely anglophone Ontario and the francophone Quebec in 1867.37 Several provinces have been established under the Indian Federation to provide autonomy for linguistic minorities, particularly in the North-East. In Nigeria the federal device, as reorganized after the Biafran war, helped to provide security and participation to its minorities, and maintained the unity of the state. A striking example of the successful use of a federal type autonomy is Spain after Franco’s death in the 1978 Constitution. Various cultural and linguistic minorities or nations, prominently the Catalans and the Basques, resisting the centralization of the state in the nineteenth century, had been seeking separation by the use of violence. The outstanding example of the successful use of regional autonomy is Åland, where a predominantly Swedish-speaking population under Finnish sovereignty has enjoyed a large measure of cultural and political autonomy since 1921. Åland was 37

R.L. Watts, ‘Federalism and diversity in Canada’, in Ghai, supra note 12.

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YASH GHAI administered by Sweden as part of its dependency of Finland; when Russia obtained Finland as the price for its military victory in the nineteenth century, Åland went with it. On the granting of independence to Finland in 1917, Ålanders demanded reunification with Sweden. The League of Nations, asked to deal with the matter, recommended that Åland should remain with Finland but should enjoy a high degree of autonomy, under international guarantee, designed to protect Ålanders’ political, linguistic and property rights. Åland has its own legislative and executive bodies, which hold a wide array of powers of self-government. Ålanders also have representation in the national Parliament, and the Åland legislature is able to introduce bills in the national Parliament on subjects which fall under the authority of the national government. The national government can, and has, delegated executive authority over some national matters to Åland. There is strong institutional protection for the autonomy, provisions for which cannot be altered without the consent of both the national and Åland legislatures. Over time, Åland has come to value its links with Finland.38 Åland’s experience has served as a model of regional autonomy, and has been followed in Greenland and the Faroes, which are under Danish sovereignty. Other examples of regional autonomy include the Italian South Tyrol, for the protection of its substantial German-speaking minority, the Atlantic Coast of Nicaragua for the protection of its indigenous peoples, and Chittagong Hill Tracts in Bangladesh. In the UK participation rights of the Scottish and the Welsh have been considerably strengthened by devolution of power; it is too early to make an assessment, as it is of the Muslims’ autonomy in the Philippines’ province of Minadanao, where it has certainly abated ethnic violence. 14.2. Discussion The record of the success of autonomy to resolve or manage ethnic conflicts is mixed. There are many instances when its use has defused tensions, reorganized the state and provided the basis for the existence of ethnic groups. There are also numerous occasions when autonomy has been unacceptable either to the central government or the ethnic group. There are many examples of the abrupt withdrawal of autonomy because the central government rejects pluralism or considers that its continued operation is a threat to state integrity through secession (as in Southern Sudan and Kosovo/a). In recent years some federations have dissolved into a multiplicity of states: Bangladesh has seceded from Pakistan, Czechoslovakia has broken up, the Soviet Union and Yugoslavia have collapsed. But such break-ups are not the result of autonomy, but of the denial of meaningful autonomy. Many federations or autonomous systems have suffered acute tensions or crises (Canada, Nigeria, Pakistan), but it is probable that without federation, they would be worse off. Agreement on autonomy is, moreover, exceedingly hard to negotiate. It has

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L. Hannikainen, ‘The International Legal Basis of the Autonomy and Swedish character of the Åland Islands’, in L. Hannikainen and F. Horn, Autonomy and Demilitarisation in International Law: The Åland Islands in a Changing Europe (Kluwer, The Hague, 1997).

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PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES proved impossible to muster enough political support for significant autonomy in Sri Lanka despite years of negotiations and waves of violence. An important objection to territorially based solutions is that a complete identity of ethnicity and territory is impossible without an infinite fragmentation of the state. Ethnically based autonomy will create new minorities; the position of these minorities may be worse than in a non-ethnic state, since they may be subjected to discrimination or have to acknowledge the symbols and cultures of the regional majority. The partition of Ireland in 1921 produced minorities on both sides of the border; the substantial Catholic minority in Northern Ireland was then subjected to institutionalized discrimination. The demand for new provinces in India has come from minorities in linguistically based provinces, where there was considerable discrimination against them. However, it is possible to make arrangements which would protect the interests of ‘minorities within minorities’, through power sharing, cultural autonomy and devolution to local authorities where these minorities constitute a significant number (in Sri Lanka, where this has been a major obstacle to autonomy, these devices are included in the draft Constitution). It is argued that if autonomy can be justified on ethnic grounds, the rules justifying the grant of autonomy (identity, a sense of discrimination/injustice) may encourage the mobilization of other minorities to manufacture ‘ethnic communities’. There is also the fear that autonomy may lead in time to secession, although there is little evidence of it. 15. GROUP OR CULTURAL AUTONOMY Many of these objections do not apply to group autonomy. There are different forms and uses of cultural autonomy. Rights or entitlements protected under such autonomy can be personal, cultural or political. They can be entrenched or subject to the overriding authority of the government. They normally consist of positive and substantive rights and entitlements, but they can be negative, such as a veto. They form the basis of the communal organization of politics and policies, and of the collective protection of their rights. At one end is corporate autonomy or, more accurately, corporate identity, as the basis of wide-ranging rights, as exemplified by the independence Constitution of Cyprus (1970). Contemporary examples include the Constitution of Bosnia-Herzegovina, which combines more traditional federalism with corporate shares in power and communal vetoes. These forms of autonomy were significant features of old and modern empires. Modern examples include provisions in the Constitutions or laws of Estonia, Hungary, the Russian Federation and Slovenia. These countries provide for the establishment of councils for national minorities which assume responsibility for the education and cultural affairs of the minorities.39 In principle a council can be set up if a majority of the community desire it, as expressed in votes. Once established, its decisions bind members of the community throughout the state, except that a member can opt in or out of membership – the important principle of self39

A. Eide, ‘Cultural Autonomy: Concept and Contents’, in Suksi supra note 6, pp. 256–9.

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YASH GHAI identification is maintained. Within the areas in which powers are vested in it, the council’s regulations prevail over those of the state. The council has the power to levy a tax on its members; and also receive subsidies from the state. It has authority over language, education and culture of the minority. The principal objective of the system is the maintenance or strengthening of the identity of the minority, based on language and culture. The aim is to take culture out of ‘politics’, and leave other matters to the national political process, in which minorities may or may not have a special status through representation. It is too early to evaluate the experience as the few councils established so far, often under external pressure, have existed only for a short period. However, it would seem that the distinction between culture and politics may be too simplistic, especially today when the survival of culture is closely connected to the availability of resources and to national policy in several areas. Another use of group autonomy is the application to the members of a community of its personal or religious laws (covering marriage and family, and occasionally land, particularly for tribal communities).40 The application of personal laws, and thus the preservation of customary law or practices, is considered important for maintaining the identity of the community. When India tried, during the drafting of its Constitution, to mandate a common civil code for all of the country, some Muslim leaders objected. The supporters of a common code argued that common laws were essential for national unity. The opponents argued that it amounted to the oppression of minorities and the loss of their communal identity. The result was that the Constitution merely set a common code as an objective of state policy, and it is now a well established convention that the sharia will continue to apply to Muslims so long as they desire it. The scope of the application of personal laws, quite extensive during the colonial period in Africa and Asia, is now diminishing under the pressure of modernization (although it is being reinforced in some countries committed to a more fundamentalist view of religion). However, one place where regimes of personal laws still apply with full vigour is Israel, where all of the major religions have their own laws on personal matters.4141 For the Jews, most matters of personal law fall exclusively within the Rabbinical courts, while Muslims are subject to the jurisdiction of Sharia courts applying the Sharia. Although linked to and supported by the state, these courts are administered independently of the state. For the Muslims, the presence of Sharia courts has reinforced their sense of community and the values they want to live by, and helped in the social reproduction of the community (an important factor for a minority, and one whose substantial numbers live under foreign occupation). For the Jews, however, the Rabbinical courts have been deeply divisive, symbolizing the fundamental schism between the Orthodox and secular Jews. In both instances the courts give the clergy, committed to the 40

Y. Ghai, ‘Decentralisation and the Accommodation of ethnic diversity’, in C. Young, supra note 21, pp. 52–9; for a historical account of its use in Europe, see Eide, ibid. 41 See M. Edelman, Courts, Politics and Culture in Israel (University of Virginia Press, Charlottesville, 1994) on which the following account is principally based.

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PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES preservation of orthodoxy, a specially privileged position. The law is slow to change in these circumstances. Personal regimes of laws have also sharpened the distinction among Israel’s communities, and formed a barrier to social relations among them. Such laws would prove an obstacle if state policy were to change in favour of greater integration of communities. One of the major problems with cultural/religious/legal autonomy of this kind is that it puts certain sections of the relevant community at a disadvantage. Edelman shows how both Jewish and Muslim women come off worse in their respective autonomous courts. In India, Muslim women are unable to benefit from the more liberal legal regime that applies to other Indian women after the reforms of the 1960s. One aspect of their disadvantage was illustrated in the famous Shah Banu case ((1985) 2 Sup. Ct Case 556). In this case, although the Supreme Court held that the maintenance a Muslim divorced woman could claim from her former husband was that under the general national law, which provided a higher amount than she would get under the Sharia, the government gave way to pressure from the Muslim clergy and other sections of the Muslim community and legislatively over-ruled the decision.42 In Canada the application of the customary law of Indian bands has also disadvantaged women (the UN Human Rights Committee has held invalid the law which deprived an Indian woman of her land and other community rights if she married an outsider; men who marry outside the community do not incur a similar liability). In South Africa claims of traditional leaders for the continuation of customary laws were resisted by African women because of the discriminations against them, such as in relation to custody and inheritance. The South African solution was to provide for the application of customary law but subject to the Bill of Rights. The Canadian government is negotiating a similar solution for the band laws. 16. CONCLUSIONS Participation in public affairs by minorities is central to their sense of identity. It is crucial to their feeling a part of the state and the wider community. It is essential to the protection of their interests. It helps to inform decision-makers of the concerns of minorities, and leads to better decision-making and implementation. There is less agreement on how participation by minorities should be facilitated and structured. One point of view is that separate provisions should be established for minority participation, as in legislative representation and executive power, and that there should be as much self-government by minorities as possible. The other view is that the modalities of participation should be designed to encourage the political integration of minorities. Even if it were agreed that one or the other was the preferred approach, it might still be hard to generalize on the usefulness of particular modalities. The choice between these options may depend, in many situations, less on their inherent merits than on circumstances and constraints. The objective circumstances as well as the aspirations of minorities vary from place to 42

S. Kazi, Muslim Women in India (MRG, London, 1999).

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YASH GHAI place, and from time to time. For example, the size of the minority is a material factor: a substantial and economically well-off minority might not require special rules for legislative representation, but a small minority might. Moreover, in the former case, special rules might be resented or mistrusted by the majority, but not necessarily in the latter case. This Article has attempted to set out a menu of approaches and modalities. The choice of approach and modalities would depend on the ultimate goals that the state and minorities have set themselves. The problem arises when there is no consensus either between the majority and the minority, or within each group. A section of a minority may want to preserve its social structure and culture at all costs; another may wish to escape the constraints or even the oppression of the community and seek their identity in a cosmopolitan culture. The choice would also depend on the balance between individual and communal rights. Furthermore, particular solutions may not be valid for all times; they may need to be reviewed as the socio-economic and demographic situations change. It is, however, worthwhile to caution against reifying temporary or fluid identities, which are so much a mark of contemporary times. Separate representation and institutions tend to lead to ethnic manipulation or extremism. Many recommendations which have been made in recent years are untried and, even though different ways of furthering minorities’ participation have been tried, it is too early to assess their success. Many of them are concerned excessively with conflict management, and perhaps have been insufficiently focused on long-term objectives. RECOMMENDATIONS 1. All states and regional intergovernmental organizations should provide for and facilitate the effective participation rights of minorities and indigenous peoples in keeping with international norms. Additionally, regional systems for the protection of minorities and indigenous peoples should be established where they do not currently exist. Such regional systems should respond to local realities and facilitate the settlement of disputes that might lead to the oppression of minorities or ethnic conflict. 2. Because citizenship is generally the key to participation rights, those states that have restrictive laws on the acquisition of citizenship should review their laws to enable people who move from one state to another for settlement purposes to acquire citizenship. States that prohibit dual nationality should repeal this restriction, since many people today identify with more than one country. 3. States should guarantee to immigrants key participation rights at the national and local levels after, at most, five years of residence. 4. States should devise electoral laws to encourage political parties to broaden their appeal to members of minorities and indigenous peoples, and require or encourage 44

PUBLIC PARTICIPATION, AUTONOMY AND MINORITIES political parties to nominate a minimum specified proportion of candidates from minorities and indigenous peoples. States that have elections by proportional representation should abolish the threshold for representation as regards parties of minorities and indigenous peoples. 5. States should set up systems of government and administration that allow minorities and indigenous peoples to participate in decision-making and implementation. Legislative procedures should allow representatives of minorities and indigenous peoples, and minority-representative institutions, a special role – such as initiation, prior consultation and special voting rights – regarding any bill with a major bearing on minority rights. 6. States engaged in post-conflict transition should adopt systems of power sharing, at least for a limited period, and such power sharing should be based wherever possible on parties rather than on ethnicity. 7. Where a minority or indigenous people is geographically concentrated, states should establish territorial autonomy to provide for self-government. Group or cultural autonomy should be provided when the minority or indigenous people desires it. Group autonomy should be based on self-identification, allowing individual members of minorities and indigenous peoples to opt out of that autonomy. Within territorial or group autonomy arrangements, there should be provisions to protect the rights and legitimate interests of women and of groups that become minorities as a result of the autonomy. 8. States should support and encourage organizations that promote minority and indigenous cultures and languages and should promote cultural exchanges, understandings and reconciliation between different communities. 9. States should set up institutions, such as minorities ombudspersons, to ensure fair treatment of minorities and indigenous peoples, and the promotion of minority and indigenous participation in public and economic life.

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LEGAL APPRAISAL OF AUTONOMY TERRITORIAL AUTONOMY AND INTERNATIONAL STABILITY: PROS AND CONS FROM THE VIEWPOINT OF INTERNATIONAL LAW Hans-Joachim Heintze The concept of autonomy – or self-government – has been, at least for half a century, under discussion at a global level. It is noteworthy that the travaux préparatoires of the UN Charter concerning the trusteeship territories already clearly referred to ‘self-government’.1 It was conceived as denoting autonomy, but not as independent statehood. This position was underlined in respect of the trusteeship system, in which ‘self-government’ is not to be confused with ‘selfdetermination’.2 Before this historical background, as one of the sources of the modern understanding, ‘internal self-determination’ or autonomy is to be seen. However, most of the trusteeship territories are now finally independent States. Though the concept of autonomy is therefore even in the system of the UN not a new idea the organisation was not able to overcome the legal grey areas, which are connected with that idea. Alone the example of the establishment of statehood in former trusteeship territories shows to a large degree confusion about the term autonomy (or self-government) and the content of self-determination, minority rights and autonomy. Under these circumstances one cannot be surprised that many States have a still a hostile attitude towards any autonomy regulations due to fears of weakening the existence of the State by secessionist demands of minority groups. Ethnic conflict has become a source of international concern. Those conflicts culminated after the Cold War with the eruptions in Former Yugoslavia and the Soviet Union – proving that they are not a vestige of the ‘primitive’ past − as well as those in Africa. This ‘ethnic mobilisation’ among minorities in multiethnic States has often led to demands for self-rule or secession.3 Under those circumstances where practically nearly all armed conflicts are related to non-international conflicts between States and ethnic groups it is worth while to examine autonomy as a possible solution for those minority issues. Autonomy is an indefinite and general legal term that has to be given a concrete content in every special case.4 Organisational as well as substantive rules for 1

UNCIO, Vol. 6, UN Information Organization New York 1945, p. 278. K. Doehring, ‘self-Determination’ in B. Simma (ed.), The Charter of the United Nations, A Commentary (Oxford University Press, 1994) p. 60. 3 S. E. Cornell, Autonomy and Conflict (Uppsala Universitet, 2001) p. 5. 4 H.-J. Heintze, ‘On the legal understanding of Autonomy’ in M. Suksi (ed.), Autonomy: Applications and Implications (Kluwer, The Hague, 1998) p. 13. 2

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HANS-JOACHIM HEINTZE autonomous entities do not follow a given and uniform pattern. The particular form depends on the specific group, on the preparedness of the majority to grant autonomous rights and on the influence of other States and the international community.5 The essential element of autonomy is the granting of certain rights to a specific part of the State population, in view of its characteristics, which differ from the majority of the population. Linguistic, cultural and ethnic minorities are the prototypes of groups who need protection. They are interested in excluding State and majority interference as far as their specific background, tradition and way of life are concerned. Because a certain group is, and feels, different from the majority of the population, it longs for different rights. The aim of any autonomy regime should always be the better implementation of human and minority rights and therefore to avoid conflicts within States and between States. However, autonomy regulations are necessarily always a case-to-case solution and there is no obligation under international law to grant autonomy to any group, perhaps with exception of indigenous peoples.6 One can imagine circumstances in which autonomy regulations cannot contribute to the settlement of conflicts but create new problems and confrontations among minorities or between the majority and the minority. Autonomy is always a result of careful negotiations between States and minorities or peoples about the content, aims and mechanisms of that kind of self-government. However, the State is under no international obligation either to introduce or to maintain a regime of autonomy within its own territory. So far, no document of general international law contains a right to receive – or an obligation to bestow – autonomy.7 Therefore, one cannot support the idea that autonomy is a principle of international law and at least territorial minorities have rights of autonomy within the existing structures of States.8 Nevertheless, the parties to possible autonomy regimes have to take into consideration the advantages and disadvantages of that concept. 1. PROS OF AUTONOMY International law affirms the value of cultural diversity and of individual choice and cultures as context of choice. It is in favour for the continuance of cultures and the nexus between individual and collective identity.9 Autonomy regulations are a possible way for the realization of those aims of international law. 5

R. Bernhardt, ‘Federalism and Autonomy’ in Y. Dinstein (ed.), Models of Autonomy (Nijhoff, Dordrecht, 1981) p. 27. 6 H.-J. Heintze, ‘The Protection of Indigenous Peoples under the ILO Convention 169’ in M. Bothe et al. (eds.), Amazonia and Siberia (Graham & Trotman, London, 1993) p. 323. 7 R. Lapidoth, Autonomy – Flexible Solutions to Ethnic Conflicts (United States Institute of Peace Press, Washington D.C., 1996) p. 175. 8 D. Sanders, ‘Is Autonomy a Principle of International Law?’, 55 Nordic Journal of Int'l. Law (1986), p. 17. 9 P. Thornberry, ‘Introduction: In the Strongroom of Vocabulary’ in P. Culper and S. Wheatley (eds.), Minority Rights in the ‘New’ Europe (Nijhoff, The Hague, 1999) p. 5.

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TERRITORIAL AUTONOMY AND INTERNATIONAL STABILITY 1.1. For the International Community Due to the lack of a generally accepted definition of the terms ‘peoples’ and ‘minorities’ in international law there is a certain overlap in the scopes of the norms of minority protection and self-determination of peoples. Doehring argues in the well-known commentary of the UN Charter that the first holders of the classic right of self-determination are ethnic minorities living in an ethnically different State.10 This description contributes doubtlessly to the confusion around the norm of selfdetermination and explains that one has to see minority rights always in connection with the rights of peoples. As the right of peoples to self-determination in principle includes the right to an independent State, it raises the discomforting question of what is going to happen if the world’s 3500 ethnic groups demanded their own State.11 The planet is too small to provide each of them with full sovereignty over a piece of land. Disintegration into hundreds of States is neither realistic nor desirable.12 Even for Buchanan who views the modern State with deep ambivalence, the prospect of uncontrolled secession is, because of the human and economic costs, a cause for considerable apprehension.13 Therefore one has to argue for the need of an international response to secession demands. The most important element of such an international strategy is to distinguish between demands for secession and less extreme forms of self-determination. Autonomy regulations are doubtlessly in the interest of the international community, which is in favour of keeping the number of States on earth as low as possible. Henrard recommends an enhanced awareness of the relationship between the right to self-determination and a high degree of intrastate stability, which would probably help to counter the typical escalation fear of States regarding the grant of special rights to minorities.14 This means, compromises must be found to satisfy the aspirations of minorities and other groups. Many scholars argue, like Eide, that the right to secession prevails over territorial integrity only in cases of severe deprivation of a group’s human rights, especially the rights of a minority.15 Judge Wildhaber identified in Loizdou v. Turkey 1996 before the European Court of Human Rights an emerging consensus that the right to self-determination should be interpreted as remedial for consistent and flagrant human rights violations.16 But even in such cases of massive human rights violations, like in Kosovo, the Security Council, the community of States (and legal 10

Doehring, supra note 2, p. 60. T.R. Gurr and J.R. Scaritt, ‘Minorities Rights at Risk: A Global Survey’, 11 Human Rights Quarterly (1989) p. 375. 12 An Agenda for peace, UN Doc. A/47/277, para. 17. 13 A. Buchanan, ‘Federalism, Secession, and the Morality of Inclusion’, 37 Arizona Law Review (1995) p. 53. 14 K. Henrard, Devising an Adequate System of Minority Protection (Nijhoff, The Hague, 2000) p. 312. 15 A. Eide, ‘In Search of Constructive Alternatives to Secession’ in C. Tomuschat (ed.), Modern Law of Self-Determination (Nijhoff, Dordrecht, 1993) p. 139 et seq. 16 Cf. 18 Human Rights Law Journal (1997), p. 59. 11

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HANS-JOACHIM HEINTZE scholars) have not been in favour of the establishment of statehood of the Kosovars. Practice shows that the international community is not prepared to recognize ethnic groups living within the boundaries of sovereign States as peoples enjoying selfdetermination. The extending of the right to self-determination might foster internal disputes and even armed conflicts.17 Since secession involves major structural and institutional change to a State and the international community of States, one can observe that the costs of transition and the potentially lasting effects on individuals and groups within the original and the breakaway States be created only if no less drastic means are available.18 This explains the new interest in solutions within the borders of existing States. In the past the UN has not been interested in questions like local self-governance and autonomy as such issues belong to internal affairs of every State. By the principle of sovereignty States themselves decide freely about those questions. This attitude has begun to change after the end of the cold war. In 1995 the Security Council explicitly welcomed the consultations regarding a new constitution based on federal principles between Georgia and Abkhasia.19 With this resolution the Council has recognized that federalism might be a possible way for solving of a minority conflict. 1.2. For the People Kirgis argues that the international community may recognize even a seriously destabilizing right of self-determination claim as legitimate if a government does not represent the people.20 This means on the other hand that the international community would not support a secession claim if the responding government represents the people belonging to the territory. But what happens if there exists a minority and the government represents primarily the majority? In such a case an autonomy regulation may be the answer. 1.2.1. Implementation of Minority Rights Especially in the past the autonomy status has often be seen as a consequence of practical considerations. It has been argued that autonomy regulations are only acceptable in cases in which the population is small ‘or the territory cannot

17 The perspective of Gerd Seidel (G. Seidel, ‘A New Dimension of the Right to SelfDetermination in Kosovo’ in C. Tomuschat (ed.), Kosovo and the International Community (Kluwer, The Hague, 2002 p. 203), who demanded statehood for the Kosovars has not been shared by most of the participants of a German-French international lawyers conference. See supra, p. 335. 18 K. Knop, Diversity and Self-Determination in International Law (Cambridge, University Press, 2002) p. 82. 19 UN Doc. S/Res. 993 (1995). 20 F. L. Kirgis, ‘The Degrees of Self-determination in the United Nations Era’, 88 American Journal of Int’l Law (1994), p. 310.

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TERRITORIAL AUTONOMY AND INTERNATIONAL STABILITY conceivably fulfil the requirements of a sovereign state’.21 Other reasons, which led to autonomy, were geographical remoteness of a region, the special relationship of the local population to their land and its resources, the region’s particular historical or cultural development or the existence of indigenous peoples who survived colonization. However, in all cases did the desirable high level of self-government not abrogate the duty of loyalty encompassed by nationality? This is also true in ‘modern’ models of autonomy regulations. The most important precondition for the necessary loyalty of minorities is the respect of the human rights of the persons belonging to minorities. If their life and security are not threatened by the majority, if their culture and religion can be exercised and if they can speak their language then there is no apparent reason for conflict and resistance.22 But very often the traditional concepts of human rights protection with their individualistic approach are not enough. They fail to respond to the specific needs of minorities. Human rights bind by national legislation all inhabitants, including the persons belonging to minorities. These laws may not respond to their specific needs. Especially in the field of civil and political rights the effect is very often limited to the State’s duty to remain passive and to refrain from interference in the individual rights.23 This approach may not ensure effective participation of the minorities in governmental affairs and in the access to political power. To overcome these shortcomings many experts recommend some affirmative action measures. One of latest attempts in that direction are the ‘Lund Recommendations on the Effective Participation in Public Life’.24 Those recommendations were elaborated at the request of the OSCE High Commissioner on National Minorities (HCNM). As an instrument of conflict prevention acting at the earliest possible stage the HCNM addresses the root causes of conflicts. Autonomy can be such a measure. Therefore, one can find in the Lund Recommendations a whole section dealing with ‘self-government’, which could also be paraphrased as autonomy. The experts recommend on the one hand that functions, which are generally exercised by central authorities like defence, foreign affairs, immigration and customs, macroeconomic policies and monetary affairs should stay with the State to prevent separatist movements. On the other hand they plead that education, culture, language, environment, local planning, natural resources, economic development, local policing functions, housing, health and social services should be applied in accordance with the principle of subsidiarity which permits adaptation to the concrete circumstances by transferring

21

B. Broms, ‘Autonomous territories’ in Encyclopedia of Public International Law, Vol. 1, North Holland: Amsterdam 1992, p. 311. 22 W. Kälin, ‘Federalism and the Resolution of Minority Conflicts’ in G. Bächler (ed.), Federalism against Ethnicity (Rüegger, Chur, 1997) p. 172. 23 W. Kymlicka, Multicultural Citizenship (Clarendon Press, Oxford, 1995) p. 35. 24 See the text of the Recommendations and the article by J. Packer, ‘The origin and nature of the Lund Recommendations on the Effective Participation of National Minorities in Public Life’, 11 Helsinki Monitor (2000) 4, p. 29.

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HANS-JOACHIM HEINTZE responsibility to the autonomous entity.25 This entity has to make sure that minority rights do more than just safeguard the political human rights of the persons belonging to minorities, because they must also contribute to the preservation of the identity of the minority. 1.2.2. Autonomy and Democracy Political participation of minorities is an expression of and a necessity for democracy. However, democracy is often characterized as majority rule. Democracy rests on the assumption that majorities can change and that power is limited in time. According to the will of the voters the political majority of today become the political minority of tomorrow. The power of the majority is not limited in scope because they do not have to share their power. This means that such a system is not necessarily willing to respect the interests of ethnic, religious and linguistic minorities. Such minorities – some authors call them ‘structural’ minorities − cannot give up their specifics (e.g. race, history) or they have to pay the price of losing their identity (e.g. culture or language).26 Those minorities may suffer even under democratic conditions. If the predominant cultural majority is large enough, it will not have to take into account the minority. Under a winner-takes-all rule the majority may even increase the advantages to its own cultural group while discriminating against the minority, because this group is not in a position to challenge the power of the political majority.27 This explains why one can find minority conflicts in States with democratically elected governments, which respect internationally codified human rights in principle. The ultimate objective of free elections and political participation must under those circumstances be ‘not “democracy” but a “democratic society”, the majority has regard the interests of all groups and peoples in the State, not merely those of its supporters’.28 Therefore one has look for concepts of so-called participatory democracy, which postulates open public debates in search of consensus and access for individuals and groups to all levels of public institutions. This has to be combined with the rule of law. Although it is a source of legitimacy, the rule of law is not sufficient without institutions of governance that are direct expression of democratic self-determination.29 Lijphart’s theory of consociational democracy offers solutions for this contradiction between the Westminster style-democracy and an effective participation of minorities in public affairs. His model of consociational democracy 25

H.-J. Heintze, ‘New Direction in the Approach of the OSCE High Commissioner on National Minorities’, 19 Netherlands Quarterly of Human Rights (2001) 1, p. 110. 26 Kälin, supra note 22, p. 173 27 W. Linder, Swiss Democracy, Possible solutions to Conflict in Multicultural Societies (New York, 1994) p. 170. 28 This is the wording of the findings of the European Commission on Human Rights in the Greek case (12 YB 1, p. 179). 29 E. Stein, ‘International Integration and Democracy’, 95 American Journal of Int’l Law (2001), p. 492.

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TERRITORIAL AUTONOMY AND INTERNATIONAL STABILITY has four main characteristics, namely coalition government, the proportionality principle, the minority veto and segmental autonomy.30 The model makes the political participation of minorities in national policy decisions as optimal as possible, because it allows them to protect and to promote their own characteristics by the minority veto. It ostensibly amounts to a form of internal self-determination for minority groups and is, therefore, in general appropriate and desirable for deeply divided societies.31 Even Wheatley, who considers the approach of consociational democracy only ‘superficially attractive’ accepts that for regional government, appropriate autonomy and subsidiaritiy is to be commended. However, this should in his opinion not be confused with a constitutional recording intended to reflect ethnic differences within the State.32 1.2.3. Autonomy as Means of Conflict Resolution The confrontation between the reassertion of rights by minorities and the resistance of States to accept meaningful pluralism has resulted in many cases in the demand for broader political and economic power of minority groups.33 Autonomy has the capability to satisfy the aspirations of an ethnic minority to a degree of political power while preserving the territorial integrity and sovereignty of the State. Therefore it is often seen – although it was used rarely by the States – as an instrument of conflict resolution between the demands of a group for more independence and the rights of the State to territorial integrity.34 The main advantage of autonomy follows from the fact that the suppression of groups and minorities calls forth their resistance, thus disturbing public order. This opposition could also impede the exchange and communication between different groups of the population. The principle of subsidiarity, on the other hand, could promote a productive participation of minorities in the State. This underlines ‘The Congress of Local and Regional Authorities in Europe’ of the Council of Europe in its Recommendation 43 (1998): ‘Convinced that the application of the principle of subsidiarity, whereby decisions are taken at the level closest to citizens, can contribute positively to resolving the problem of protecting national minorities’. Political and cultural pluralism will have positive effects on the society as a whole, as tolerance facilitates voluntary assimilation of a minority. People can express their distinct identity and run its own affairs in certain spheres. Autonomy follows from a 30 A. Lijphart, Democracy in Plural Societies: A Comparative Exploration (New Haven, Yale University Press, 1977) p. 36. 31 Henrard, supra note 14, p. 314. 32 S. Wheatley, ‘Minority Rights, Power Sharing and the Modern Democratic State’ in supra note 9, p. 201. 33 H. Hannum, ‘The Limits of Sovereignty and Majority Rule: Minorities, Indigenous Peoples, and the Right to Autonomy’ in E. L. Lutz et al. (eds.), New Directions in Human Rights (Philadelphia, University of Pennsylvania, 1989) p. 14. 34 T. D. Musgrave, Self-determination and National Minorities (Claredon, Oxford, 1997) p. 208.

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HANS-JOACHIM HEINTZE special political status of a region, which is based on its population differing ethnically or culturally from the majority. Autonomy requires the recognition of the particular group features. Due to the territorial focus of many current internal conflicts autonomy has the capability of being a conflict-solving mechanism. Practice indicates, that the higher the degree of militarization of a conflict preceding the establishment of autonomy legislation, the less likelihood there is of high autonomy durability. Strong international involvement in the elaboration and implementation of the autonomy regulation, however, has a positive effect on the durability.35 This experience underlines that in principle autonomy has an international aspect due to its influence on regional stability. 1.3. Expression of a Modern Understanding of Sovereignty The expansion and enhancement of economic and political activity as well as the increasing acceptance of human rights have placed in question the allocation of authority dictated by the Westphalian order. Social changes have driven a paradigm shift from a world of States to a world of diminished State sovereignty. This process is according to Elazar accompanied by the legitimization of ethnic identity and national self-determination, which is associated with the ‘postmodernist’ preference for local knowledge over global norms.36 However, usually the government of a State wishes to prevent the autonomous regional entity from acquiring sovereignty due to fears of secession. The autonomous entity on the other hand is very much interested to get as many elements of sovereignty as possible. Broms argues that even existing autonomous territories are – as a rule – interested in becoming independent.37 To solve this contradiction means to question the modern understanding of sovereignty. Many scholars have growing doubts concerning the extent and usefulness of the concept of sovereignty in our days and speak about a relative notion, variable in the course of time.38 Practice has proven, however, that the classical meaning of sovereignty as total and indivisible State power has been eroded by the development of the modern world. State borders are no longer dividing lines between States and societies. Economies are interdependent and the norms of international law – especially human rights – undermined the idea of total sovereignty. Therefore Reisman refers to the need of ‘contemporatization’ of the notion of sovereignty.39 The concept of autonomy fulfils such a demand. Lapidoth 35

K.-Å. Nordquist, ‘Autonomy as a Conflict-Solving Mechanism – An Overview’ in M. Suksi (ed.), Autonomy: Applications and Implications (Kluwer, The Hague, 1998) p. 73. 36 D. J. Elazar, Constitutionalizing Globalization: The Postmodern Revival of Conferal Arragements (Lanham, Rowman & Littlefield, 1998) p. 19. 37 Broms, supra note 21, p. 311. 38 L. Wildhaber, ‘sovereignty and International Law’ in R. St. Macdonald and D. M. Johnston (eds.), The Structure and Process of International Law, p. 440. 39 W.M. Reisman, ‘sovereignty and Human Rights in Contemporary international law’, 84 American Journal of Int’l Law (1990), p. 873.

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TERRITORIAL AUTONOMY AND INTERNATIONAL STABILITY argues that autonomy and sovereignty are not mutually exclusive under a modern understanding of those concepts.40 Autonomy as we understand it today is partly a consequence of this modern development of international law. The general acceptance of the right of peoples to self-determination has encouraged groups to claim more participation in their government instead of simply accepting majority rule. However, if peoples fight for secession and the establishment of a new State they behave in very conservatively because they are promoting the multiplication of States. Therefore it is an attempt to create more States, not to change the character of State sovereignty. To establish a new State means to replicate sovereignty without questioning it. It does not call into question the dominant conception of the State and the existing international order. Autonomy on the other hand may lead to a more critical attitude toward the nature and structure of State authority. It is ‘in the strict sense’ a rejection of the idea of State sovereignty ‘in its purest form – the claim that there is only one legitimate legislative authority, the State itself’.41 This is the reason that autonomy regulations are more fundamental challenges to the conception of the State authority than the demand of secession. The changing character of sovereignty is reflected – beside ethnic questions – worldwide in the appearance of ‘sub-State entities’, i.e. internal institutions and confederate structures playing an increasing role and taking on functions previously within the competence of States. 1.4 Flexibility of the Concept of Autonomy It is impossible to achieve a perfect solution regulating the relationship between the majorities and minorities. Territorial autonomy always involves a compromise because perfectly ethnic homogenous territories can – and should – never be established.42 The flexibility of the autonomy concept allows balancing of the concrete negative and positive effects of autonomy in each case; the legal basis is the minimum standard of minority rights. As a rule the regulations are not rigid, they allow the introduction of changes. It is sometimes deliberately designed to be established by a gradual process. This gives the parties an opportunity to adapt slowly to the new regime and to collect experiences. In this way the parties can build confidence. According to the principles of the rule of law autonomy should by established by law and the enactments which regulate the regime should be amended only by a procedure that is more stringent than the one used for the amendment of regular laws. However, in State practice one can find other approaches. Taking the Faeroese 40 R. Lapidoth, ‘Autonomy and Sovereignty – Are They Mutually Exclusive?’ in A. Shapira and M. Tabory (eds.), New Political Entities in Public and Private International Law (The Hague, Kluwer, 1999) p. 14. 41 Buchanan, supra note 13, p. 54. 42 A. Lijphard, ‘self-Determination versus Pre-Determination of Ethnic Minorities in Powersharing Systems’ in W. Kymlinka (ed.), The Rights of Minority Cultures (Oxford, University Press, 1995) p. 275.

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HANS-JOACHIM HEINTZE Home Rule as an example, it is obvious that it is a typical political construction and not a stringent legal construction.43 This may explain some shortcomings of the Faeroese model.44 The forms of implementation of minority and peoples’ rights are diverse. Minority cultural rights allow peoples and other groups to wear their distinctive cultural dress, to be called by their own names and to practice their own cultural and religious rituals as well as to learn and to speak their own language. Selfgovernment primarily concerns political rights, but besides the administration it includes, inter alia, the regulation of the use of land and the exploitation of natural resources, property and tax rights. Such rights belong to the so-called internal rights of self-determination because they can be exercised short of secession within the State. Such a solution expands the set of constructive alternatives immeasurably. States are under those circumstances free to acknowledge that a group has legitimate interests in self-determination.45 Autonomy regulations are very flexible because the details of the autonomy are open to negotiation between the representatives of the central State and those of the autonomous regime. In any case the basic idea of any regulation is the principle of subsidiarity. It is a political and social rule for organising State and society. Subsidiarity is based on the idea that there are elements between the State and the individual enabling the individual to preserve his identity. As a legal principle, subsidiarity has a positive and a negative content: as a negative obligation, it restrains the higher-up community level if a solution can be achieved on the lower community level. This is complemented by the positive duty to assist the smaller community if necessary. The principle of subsidiarity is thus based on spreading public affairs among different communities in order to avoid centralisation. The ‘recognition and institution of territorial autonomy, which may consist in local or regional self-government’ is according to the Council of Europe a concrete form of the application of the principle of subsidiarity.46 Subsidiarity has to be adapted to the circumstances of the case and cannot be defined abstractly.47 It always raises the practical question of what forms of selfgovernance would be necessary to guarantee comprehensive participation of minorities in public life. Due to its flexibility it is increasingly adopted in national and international affairs and serves as the basis of assigning tasks, which are performed by the world community on the planetary level, some by regional communities, others by nation-States, and finally some on the local level, through formalized structures. 43

A. Olafsson, ‘Relationship between Political and Economic Self-Determination. The Faeroese Case’, 64 Nordic Journal of International Law (1995) p. 479. 44 Cf. L. Lyck, ‘The Faeroese Home Rule Act as a Framework for the Faeroese Economy’ in L. Lyck (ed.), Constitutional and Economic Space of the Small Nordic Jurisdictions (Stockholm, 1997) p. 137. 45 Buchanan, supra note 13, p. 54. 46 Recommendation No. 43 (1998), adopted on 27 May 1998. 47 Elazar, supra note 36, p. 60.

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TERRITORIAL AUTONOMY AND INTERNATIONAL STABILITY Autonomy can contribute to solving minority conflicts on the local level by flexible means. Despite the widely accepted positive effects of autonomy on the protection of minorities, State practice has shown no willingness to regard it as a general model for the resolution of minority conflicts. There is no right to autonomy to be found in treaties. Even in the area of soft law, States consciously avoid any apparent acceptance of autonomy. But the mere fact that the possibility of autonomy is mentioned in some OSCE documents has to be emphasised, as it proves that autonomy is of increasing importance in enforcing minorities’ and groups’ right to identity. The concept of autonomy and its status as a principle of international law also gains new impulse by the debate in the UN on the rights of indigenous peoples. This is the first time a group is expressly given the right to autonomy by a draft of an UN Declaration. Although the unique character of these claims has to be kept in mind, the debate on indigenous peoples indicates the increasing acceptance of autonomy. One has also to take into consideration that the community of States hesitates to accept the draft of the declaration on indigenous rights due to the articles on self-determination and autonomy. Another example of those reservations on the part of the States is the good neighbourhood agreement between Slovakia and Hungary. The mentioning of the Council of Europe Parliamentarian Assembly’s Recommendation 1201, which refers to the right to autonomy, led to the provisional failure of the negotiations on that bilateral treaty. This example shows that the sensitivity with regard to autonomy on whatever form is still very strong even in some member States of the Council of Europe.48 1.5 Content of Autonomy The term autonomy is used today in three different branches of science. In philosophy autonomy is the power of the human being to determine by himself on the basis of its rationale will. In natural sciences the concept means organic independence. In law and politics autonomy has many meanings. Lapidoth identifies four conceptions of autonomy in the law: (a) as a right to act upon one’s own discretion in certain matters, (b) as a synonym of independence, (c) as synonym with decentralisation and (d) as exclusive powers of legislation, administration and adjudication in specific areas of an autonomous entity. In principle, autonomy is regarded as granting internal self-government to a region or group of persons, and thus partial independence from the influence of the national or central government.49 The term autonomy appears in various legal contexts and is used differently, because it is not a well-fitted legal concept. In fact, this concept was originally derived from sociology. The frequent appearance of territorial autonomy has led many to restrict the term ‘autonomy’ to this type, although it is only one among many. It means that 48

H. Klebes, ‘The Council of Europe’s Framework Convention for the Protection of National Minorities’, 16 Human Rights Law Journal (1995) p. 92. 49 R. Lapidoth, ‘Autonomy: potential and limitations’, 1 Int’l Journal of Group Rights (1994) p. 277

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HANS-JOACHIM HEINTZE under the principle of territorial sovereignty, one region is given a special status. The latter possesses the competence of self-government organs to regulate certain matters, i.e. subject of autonomy is territorial self-government. These competencies go beyond local and regional self-government and include specific problems of the minority or group. Territorial autonomy as a form of group protection can only be implemented if the group in question lives in a defined area, i.e. in a geographically distinct territory, and constitutes the majority there. As a consequence of a region being autonomous, all people living in it are subject to this status, not only the members of certain groups. On the other hand, those members of a minority living outside the autonomous area do not enjoy this status. When integrating a group that lives in one region only and has a historically developed group consciousness, taking into account local circumstances is unlikely to permit any other solution than regionalisation and decentralisation of the institutional State structure. In order to minimise the misuse of autonomy, there should be clear and precise agreements between the sides concerned. The following points are essential: A precondition of autonomy is the willingness of the organ of self-government to comply with human rights and minority rights standards. Other crucial prerequisites include ensuring the safety of its citizens and the creation of representative and elected bodies necessary for democratic legitimisation. Funding territorial autonomy will necessitate further rights and could even include the competence of taxation. Mechanisms are needed for the resolution of conflicts between the State and the organs of the autonomous region. In most cases, preparatory and transitional rules and agreements will be necessary too. 2. CONS OF AUTONOMY? Wippman rightly argues that it depends on different aspects whether a proposal for autonomy will be productive or counterproductive. He mentions the goals of the relevant actors, the size and political strength of the minority population vis-à-vis the majority and vis-à-vis other minority groups in the society, the territorial concentration of the relevant groups, the timing of the proposal, the history of the majority-minority relations in that society, the goals and involvement of kin-States and other interested outside actors, and a host of other variables.50 The territorial autonomy that may work for the Åland-Islands or the Trentino-Alto Adige region may be totally impractical or unnecessary for minorities in other States.51

50

D. Wippman, ‘The Evolution and Implementation of Minority Rights’, 66 Fordham Law Review (1997), p. 624. 51 G. Malinverni, ‘Local Self-Government, Territorial Integrity and Protection of Minorities’ in European Commission for Democracy Through Law (ed.), Sciences and technique of Democracy, Vol. 16 (Strasbourg, Council of Europe, 1996) p. 314 et seq.

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TERRITORIAL AUTONOMY AND INTERNATIONAL STABILITY 2.1. Division of the Population into Groups It is possible to argue that autonomy does not make sense if human rights are respected and the society is organized in a democratic way.52 There is no doubt that the implementation of the whole body of human rights law, including effective remedy mechanisms, is the fundament of minority protection. If the inhabitants of a State are free of fear and discrimination resulting from minority status then there is no reason for engaging in a conflict with the majority. Under those conditions the demand for autonomy as an instrument of minority protection, has been criticised. Its opponents claim that assimilation has advantages over autonomy because any different treatment of people due to their belonging to a group calls forth the opposition of other groups, which eventually leads to ethnic conflicts.53 Autonomy regimes rest on the assumption that differences enrich more the endanger the society. Cultural survival is defended by counteracting the (Western) homogenisation. This means according to Steiner ‘a state composed of segregated autonomy regimes would resemble more a museum of social and cultural antiquities than any human rights ideals’.54 Moreover, a system, which recognises minorities, is regarded as economically and politically inefficient: The free market is impeded because minority members are less inclined to leave the group’s territory. Politically, the division of society made it more difficult to reach consensus. Autonomy might also isolate the minority and alienate different groups, which could eventually lead to segregation. The dialogue between groups, essential for a multi-ethnic State, could cease. There is, in the opinion of some authors, considerable reason to argue that the institution of territorial autonomy may foster ethnic mobilisation, increased secessionism and even armed conflict.55 Therefore, those structures may be counterproductive under certain circumstances.56 A further negative consequence of autonomy legislation may be that the government feels less responsible for the political stability, development and prosperity of the autonomous region.57 2.2. Autonomy, Human Rights and Discrimination It has been criticised that autonomy promotes the separate ethnic identity of a group and the responding minority is singled out as being different. The very existence of such a special status would discourage the development of overlapping and inclusive identities. Cornell points out that the concept of all citizens being equal and 52

See Kälin, supra note 22, p. 172. D. Steiner, ‘Collective Rights’, 13 Human Rights Quarterly (1991) p. 368. 54 H. J. Steiner, ‘Ideals and Counter-Ideals in the Struggle Over Autonomy Regimes for Minorities’, 66 Notre Dame L. Rev. (1991) p. 1552 55 M. Brems, Die politische Integration ethnischer Minderheiten (Frankfurt/M., 1995) p. 142. 56 See Cornell, supra note 3, p. 7 57 L. Lyck, ‘Lessons to be learned on autonomy from the Faeroese situation since 1992’, 64 Nordic Journal of Int’l law (1995) p. 481. 53

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HANS-JOACHIM HEINTZE members of a civic nation would be hardly compatible with the singling out of specific groups on the basis of their ethnicity.58 Wheatley warns that the ethnic ‘cantonisation’ of a multi ethnic State or ‘consociational democracy’ (regardless of its form) are in the long term unhelpful, because they explicitly discriminate between groups on grounds like religion, language, race or national origin. His criticism is a consequence of that fact that power-sharing schemes are concerned with the rights of the group and not with the rights of the individuals.59 Indeed, this danger is inherent to the concept of autonomy because the holder of territorial autonomy is always a group. Hence the prerequisites of autonomy are recognition as a minority or group on the one hand and the acceptance of collective rights on the other. Another condition for self-government is the existence of a representative organ recognised by the State granting autonomy as well as by the group. This may lead to power struggles within the minority. The advantage of minority protection systems under international law – to transform minority rights into human rights and to make the individual the holder of those rights – is questioned by such an approach. Rights held by a group are by nature dissimilar to those held by individuals. According to some theories about the character of collective rights this might create problems. Granting autonomy to a territory may be perceived as a disadvantage and an act of discrimination against other groups who live in that area. Therefore, the autonomy legislation has to safeguard the rights of other groups rather than just the holders of territorial autonomy. The power relationship in an autonomous territory is reversed. The group, previously in the minority, takes power and the relationship between majority and minority is for practical purposes inverted. Therefore, there is always a danger of acts of revenge and one has to emphasise that the authorities of an autonomous region must respect and ensure the human rights in particular of the ‘new minority’. This must be seen as a basic rule of any autonomy legislation whatever its nature and an important challenge to the new administration. For example, in the case of Kosovo, the UN General Assembly60 and other human rights institutions became after 1999 – i.e. after the NATO intervention – increasingly concerned about the frequent instances of harassment, periodic kidnapping and murder of ethnic Serbian, Roma and other minorities by ethnic Albanian extremists.61 2.3. Autonomy and Secession The question arises whether autonomy relates only to a purely domestic and mainly constitutional dimension or whether there are international underpinnings to that concept. Especially the uncertainness of the norm of self-determination opens a wide 58

Cornell, supra note 3, p. 228. Wheatley, supra note 9, p. 201. 60 UN-Doc. 54/183 (29 February 2000). 61 J. Kokott, ‘Human Rights Situation in Kosovo 1989−1999’ in Tomuschat, supra note 17, p. 26. 59

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TERRITORIAL AUTONOMY AND INTERNATIONAL STABILITY field of problems. Under which circumstances self-determination may create an entitlement to autonomy is thus doubtful.62 The criticism by many States of the proposal of Liechtenstein in the General Assembly in 1991, according to which communities having a distinctive social and territorial identity should be able to enjoy autonomy to realize their right to self-determination over their affairs, reflect the unclear legal situation. Under those circumstances it is not surprising that there has been a need for pressure on both the Albanians and the Serbs in Kosovo by the UN to come to an agreement on autonomous regulations.63 But other States are also extremely reluctant to grant any form of self-government to groups and consider decentralization as a step in the direction of ‘Balkanization’.64 Delegating State competencies to autonomous institutions is often suspected of being a step towards secession. Cornell even argues that secessionism is likely to be significantly higher for minorities equipped with an autonomous region compared with non-autonomous minorities and mentions the post-Soviet experience as evidence.65 Due to the fact that autonomy can create institutions with some legitimacy can create a widespread fear of the spiral from cultural autonomy and administrative autonomy to secession. This explains, in a large measure, the reticence of States to accept any kind of legal instrument containing an obligation to grant persons belonging to a national minority the right to have at their disposal appropriate local or autonomous authorities. Autonomy doubtlessly increases the group cohesion and the incentives of the group to act; its political institutions also increase their capacity to act. Gurr underlines that capacity for collective action is relative high among those groups that control an autonomous government.66 The possession of State-like institutions has very often the effect of ethnic mobilisation that can challenge the central State’s integrity. The local bodies and the parliaments can be used, inter alia, to pass language laws or to refuse to accept legislation from the central government. In situations when the leadership of the autonomous structure is nationalistic the whole bureaucracy is in danger of adopting a more nationalistic profile.67 It may increase the risk of politicians resorting to ethnic mobilisation for career purposes. Elite power may be positively correlated to the level of autonomy, which means at the end of the day that the elite has an interest to keeping nationalist emotions alive. Due to financial autonomy, which is very often part of the autonomy arrangements, the leaderships dependence from the central government is lesser. Last but not least, it is more likely that an autonomous entity – especially if there is a kin State – gets more international support than a minority without that special status. Autonomy may be a 62

G. Welhenga, ‘The Legitimacy of Minorities’ Claim for Autonomy through the Right to Self-Determination’, 68 Nordic Journal of Int’l law (1999) p. 420 et seq. 63 Kokott, supra note 17, p. 8 64 L. C. Bucheit, Secession (Yale University Press, New Haven, 1978) p. 104. 65 Cornell, supra note 3, p. 19 66 T. R. Gurr, Peoples versus States: Minorities at Risk in the New Century (Washington D.C., United States Institute for Peace Press, 2000) p. 19. 67 Cornell, supra note 3, p. 18.

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HANS-JOACHIM HEINTZE possible way to regulate the ethnic affinity of a minority with the kin State but this can also increase tensions between States. This explains why autonomy cannot be seen to be isolated from the case-to-case circumstances. 3. CONCLUSION Autonomy is not a well-defined concept in international law, there are no commonly accepted models of autonomy which can be used, and minority groups or peoples do not have any legal right to it, however, its efficacy as a means of settling ethnic tensions, preventing existing States from falling apart and of implementing internationally recognised human and minority rights is becoming more and more apparent. Evaluating the current debate on autonomy one can say that the advantages – safeguarding international stability and protecting the identity of minority groups – supersede the possible drawbacks. However, autonomy is not automatically a recipe for success. It is only one part of conflict resolution and has to be combined with other measures according to the circumstances of the case. It must be backed by the political will of the partners to make autonomy a success. The case of Palestinian autonomy is overshadowed by a lack of such a will. Therefore, one has to take those voices into consideration, which argue that the existence of territorial autonomies can increase the risk of conflict.68 It must also be taken into consideration that international law must not lead to the destabilisation and disintegration of States. That means therefore that one has to see autonomy within the framework of human rights, minority rights, self-determination and the sovereignty of States. Any isolated overestimation of one aspect of international law would lead to instability and is not in accordance with modern international law.

68

Cornell, supra note 3, p. 14.

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COLLECTIVE & INDIVIDUAL SET BACK TO BACK: AUTONOMY AND THE INTERPLAY OF INDIVIDUAL AND COLLECTIVE DIMENSIONS IN ARTICLE 27 OF THE UN INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Zelim A. Skurbaty 1

1. PRO PATRIA MORI: THE WHYS AND WHEREFORES What always seemed prima facie strange is that mysterious sense of self-conscious identification of individual actors with a community as well as the subjective feeling of compulsion to adjust their conduct and expectations in relation to that selfimposed identity. So far no “objective” categorizations could explain it. No matter how strongly this sense of attachment is politically promoted by e.g., group leaders, the fact remains that there always exists a sustained, structured interaction between members of a group, giving them a sense of being part of a “bounded whole”, which, over time, can turn into a willingness to sacrifice oneself completely for the survival of the group as a whole. There are different degrees of such mutual concern and involvement, which – in the context of the group being at war – may become a legal obligation, supported by the group’s custom or the state’s coercive power, endorsing fight, punishing flight.’ In the specific context of the present article we could proceed from the following question: can autonomy be conceived of as a group right per se or as a right of an individual to share and express her most intimate needs in community – and in the community2 − with other members of the group? To answer this question, we should give a brief analysis of the standing collective (or group) and individual rights enjoy in the international minority and human rights discourse. The best way to do that would be to demonstrate how these rights or dimensions interact in one specific human rights provision – Article 27 of the ICCPR, as the most widely used venue of complaint for individuals belonging to different types of minority groups, including indigenous populations. The dynamics revealed from such analysis would be indicative of the attitudes of the international community toward group rights in general and autonomy in particular. As is now well-known in both academic and non-academic circles, the reason why the very term ‘group rights’ has constantly been avoided after World War II was the pragmatic consideration not to provoke the resentment of member States – especially of newly independent States emerging after de-colonization – sensitive to 1

‘To die for one’s fatherland’, the shortened form of Dulce et decorum est pro patria mori. Meaning by ‘community’ any form of ‘autonomous’ entity or arrangement, both personal and territorial. 2

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ZELIM A. SKURBATY any attempts of limiting the exclusive prerogatives of their recently acquired statehood. These sovereign fledglings were suspect of any legally binding propositions designed to protect whatever groups within their boundaries, be they ethnic, religious, racial, linguistic or otherwise. Groups rights phobia developed as an overreaction to the perceived threat of an attack on the ‘sovereignty’ and of ‘interference in the internal affairs’, and was symbolic of repressed anxiety. The understanding of society as a set of independent individual wills is based on a belief in the priority of individual over cooperative values and goes back to Leibnitz (Baron von Gottfried Wilhelm, 1646–1716), who was the first to state in his major work ‘New Essays on Human Understanding, a treatise on John Locke’s Essay concerning Human Understanding’ (1704), that the physical world (and by extension, humankind) is composed of irreducible self-contained elements – monads – that are infinite in number, hierarchically arranged, nonmaterial, and in constant motion. The individualistic – monadic assumption lying at the heart of the West’s super-indulgence in individual rights was afterwards transferred matter-of-factly to the field of protection of human rights. Accordingly, the dominant ideology has taken comfort in the following clichés: collective rights are not human rights per se, because only the rights of individuals, e.g., the right to freedoms of expression, press, assembly, etc., really and truly matter in democratic societies. The latter (i.e., the individuals) can pursue their specific interests ‘in community’ with other members of kin social groups; but when the prospect of the individual-collectivity clash emerges, the individual human rights should – under all circumstances – get the upper hand over collective ones, lest the latter be used as pretexts for violating the former. Thus, the exercise of individual rights would automatically supersede collective rights, eliminate ipso facto any non-recognition or non-application of the rights pertaining to a group’s (or community’s) existence, and as a sequitur, obliterate any need for the latter. If it were so, it would be logical to suppose that from time immemorial, individuals in different societies should have been preoccupied with questions pertaining to their basic individual rights, while the questions of ethnicity and collectivity should have had a tangential, peripheral role. Even the pursuit of autonomy would be considered as something having nothing to do with the real needs of either individuals or groups. However, history proves otherwise. One of the central features of the great revolution of our times which has brought the modern world into being, writes R. Emerson, is that ‘the peoples of mankind in successive stages have been swept into a vivid and sometimes all-consuming sense of their existence as nations – or at least of their desire to create nations where none existed before’.3 If ‘group rights’ were merely varieties of the rights of individuals to associate in pursuit of particular interests, then collective rights could have been viewed in the light of Article 29 of the Universal Declaration of Human Rights, which stipulates that, 3

See R. Emerson, From Empire to Nation: the Rise to Self-Assertion of Asian and African Peoples (Beacon Press, Boston, 1960), p. 89.

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AUTONOMY AND THE INTERPLAY OF INDIVIDUAL AND COLLECTIVE DIMENSIONS ‘(1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.’4

The essence of the problem, however, boils down to whether we can afford to ignore the intimately individual human experience referred to under the rubric of ‘ethnicity’, which manifests itself in the constant search of ethnic markers in order to belong and share – the more so, if it is an experience with the potential ‘to be transformed into “aggressive nationalism” snapping back with fury like a bent twig when it is forced down’.5 We can no longer afford to be ‘blind to the fact that many demands for self-determination have been made and will continue to be made outside the colonial context’6 and should accept nolens volens that ‘[c]ultural minorities are a fact of life. Political stability requires that minority rights be acknowledged and accommodated.’7 Running ahead of our argumentation, a radical view of the whole subject can be propounded, to the effect that the entire controversy is unreal, artificial and strictly beside the point, because it assumes something that has to exist for there to be any controversy at all. It is a delusion created by uncritically assumed assumptions or presuppositions. There is simply no need to shuttle between the cracks of conceptual fragmentations (either individual or collective) and simplistic holisms (‘individual’, ‘collectivity’): the one is an equal ingredient as well as a complementary facet of the other; both represent fundamental constituents of the same universe. The question then is not what to give prevalence to – to individual or collective rights – but how to forge their modus vivendi in such a way that they establish a harmonic, complementary relationship while retaining their specific contributive value and distinctiveness. We can (and should) separate them for analytical reasons, but in existential terms they are inseparable to the extent that an individual might feel threatened, ‘desperate’, ready to ‘snap back with fury’. This is because a (ethnically-based) ‘nation’ is nothing but a community of people, ‘who feel that they belong together in the double sense that they share deeply significant features of a common heritage and that they have a common destiny for the future. In the contemporary world the nation is for great portions of mankind the community with which men most 4

GA Res. 217 A(III) 10 December 1948. See ‘Two Concepts of Nationalism: An Interview with Isaiah Berlin’, by Nathan Gardels, The New York Review of Books, 21 November 1991, p. 19. 6 See M. Sornarajah, ‘Internal Colonialism and Humanitarian Intervention’, 11 Georgia Journal of International and Comparative Law (1981), p. 846. 7 See D. Sanders, ‘Collective Rights’, 13 Human Rights Quarterly (1991), pp. 369–370. 5

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ZELIM A. SKURBATY intensely and most unconditionally identify themselves, even to the point of being prepared to lay down their lives for it, however deeply they may 8 disagree among themselves on other issues.’

This double entendre nature of the individual-collective discourse is all too obvious and there is no reason why the second meaning should any longer be passed for a risqué. It is hoped also, that by now some common though erroneous interpretations (amounting to caricature) have been exposed and bypassed. To sum up: Far from being Leibnitzean atomized entities, individuals are intimately integrated into specific groups engaged in collective symbolic interaction and sharing inter alia common value-systems and assumed beliefs about orderings of the world. In the broadest possible sense then, we can assert that the group (or kith-and-kin community) dimension is embedded in the consciousness of individuals, or is constitutive of individual beings, their collective unconscious and bio-social makeup. It inevitably flows from this that group rights should be accepted as a sui generis category of the national and international legal regimes. Such a recognition (of group or collective rights) should not prima facie be associated with sidelining and the violation of individual rights. In fact, the contrary can be true for the following reasons: a) individual rights of persons – voicing claims on behalf of groups and being persecuted by governments – can more effectively be vindicated and protected; b) legally authorized weighing and mediating of possible recognition (or rejections) of claims to ethnic self-determination, especially at an early stage of tension, would become more feasible with the effect of stabilizing inter-ethnic relations by subjecting them to the rules of international law.9

8

See Emerson, supra note 3., pp. 89−95 (emphasis added). Peter Juviler, reflecting on the recent developments in the former USSR, argues that collective rights to self-determination may be recognized in the form of internal autonomy, or even full secession, providing the following conditions are met: (1) ethnic groups are recognized as subjects of international law; (2) the inviolability of States territorial integrity should be conditional on State’s living up to their commitments as regards persons belonging to ethnic minorities; (3) collective self-determination should aim at autonomy, rather than secession; (4) valid grounds for secession might include discriminatory retribution, and violations of minority rights; (5) international recognition for such a new State should depend on ‘internationally monitored and credibly guaranteed undertakings to respect the rights of members of majority and minority ethnic groups in a mutt-ethnic community of equals’; (6) the international community must develop proactive rather than reactive means of resolving conflict; and (7) in such cases CSCE and UN mechanisms should be applied with vigor. See Juviler, pp. 281−282.

9

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AUTONOMY AND THE INTERPLAY OF INDIVIDUAL AND COLLECTIVE DIMENSIONS 2. ARTICLE 27 OF THE COVENANT ON CIVIL AND POLITICAL RIGHTS: JANUS10 EX (LEGAL) MACHINA11 HAMLET: Do you see yonder cloud that’s almost in the shape of a camel? POLONIUS: By the mass, and ‘tis like a camel, indeed. HAMLET: Methinks it is like a weasel. POLONIUS: It is backed like a weasel. HAMLET: Or like a whale? POLONIUS: Very like a whale. Shakespeare, Hamlet, Act III, Scene 2 2.1. Taking Individual Rights Seriously In contradistinction to the ambiguity of the status of collective rights (and I put as charitable a light on the matter as possible), individual rights have already achieved a position of status in international law. Although the rights and immunities of sovereign States still occupy commanding heights in current juridical consideration, recent developments point to the fact that the new definition of the law of nations goes beyond its traditional definition as a system composed of rules governing the relations between States exclusively. The concern of the international community extends now to certain rights and duties of individuals and non-State entities. Of special importance is the exponential growth of international human rights law, manifested inter alia in the adoption of new rules by which certain acts were declared to be international crimes, namely, crimes against humanity and peace and conspiracy to commit such crimes (e.g., the judgments of the International Military Tribunal of Nuremberg in 1946, of the International Military Tribunal for the Far East in 1948, or The International Tribunal on War Crimes in former Yugoslavia12). Whether such rules comprise international treaties or international customs, they have a tendency to assume the force of law in the international community, and thus to become – by virtue of the fact that contemporary international law is applicable to all States – universal. Both justice and peace are gradually promoted by transferring legal cases, especially those concerning the gross violation of human rights, from the diplomatic to the international judicial forum. Since the question is important qua

10

Janus (Mythology) 1. The god of gates and doorways, depicted with two faces looking in opposite directions. Janus-faced: Hypocritical. See The American Heritage Dictionary of the English Language. 11 Deus ex machina [New Latin deus ex machinâ : deus, god + ex, from + machina, machine (translation of Greek theos apo mêkhanês)]. 1. In Greek and Roman drama, a god lowered by stage machinery to resolve a plot or extricate the protagonist from a difficult situation. See The American Heritage Dictionary of the English Language. 12 The entry into force of the Rome Statute (Rome Statute of 1998) of the International Criminal Court (ICC) is the most recent example of this trend. The entry into force means that the ICC will be able to investigate and prosecute people accused of genocide, crimes against humanity and war crimes committed from this time onwards.

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ZELIM A. SKURBATY one of the horns of the individual/collective dilemma, I should, perhaps, further document this aspect of the contemporary international juridical scene. In 1981 the Sub-Commission on Prevention of Discrimination and Protection of Minorities appointed (by decision 1981/142) one of its members, Mrs. Erica-Irene A. Daes (Greece), as a special Rapporteur to undertake a study on the status of the individual and contemporary international law. The final report on the study,13 presented to the sub-commission at its 1989 session, was based on the information received in response to a questionnaire from a number of States, specialized agencies, the Office of the United Nations High Commissioner for Refugees and some other international agencies and organizations. Having reviewed developments relating to the subjectivity of the individual in international law, the special Rapporteur came to the conclusion that the individual is indeed a bearer of international rights and responsibilities and that she has a restricted procedural capacity directly under international law and, as a sequitur, should be considered, at least alongside the State, as a subject of contemporary international law.14 More specifically, her final conclusions can be presented as follows: (1) the individual is a subject of rights under a great number of rules of international law, is the beneficiary of international law and, in certain cases, bears the liabilities and disabilities which it imposes; the right to the protection of law, the right to own property, the right to education, the right to work, freedom of thought and assembly and the freedom of movement, residence and correspondence are examples of the rights and freedoms enjoyed by the individual irrespective of her origin, nationality, religion or language. Moreover, contemporary international law provides additional and specific protection to certain individuals: e.g., by international organizations, and in some instances against international organizations; 15 (2) of special importance is the individual complaint procedure established under the Optional Protocol – the International Covenant on Civil and Political Rights, which came into force in 1976, and the procedure for human rights complaints established under Economic and Social Council resolution 1503; both of them represent important steps in the direction of the forthcoming (to be overly optimistic) world tribunal from which an individual will be able to seek redress and which will be capable to enforce its decisions; 13

See E.-I. A. Daes, Status of the Individual and Contemporary International Law: Promotion, Protection and Restoration of Human Rights at National, Regional and International Levels (United Nations, New York, 1992). UN Doc. E/ CN.4/Sub.2/1989/40. 14 ‘The elaboration of the present study demonstrates from theoretical and practical points of view, among others, that the individual is a bearer of international rights and responsibilities, his position in international law is constantly being strengthened. He has a restricted procedural capacity directly under international law and should be considered, at least alongside the State, as a subject of contemporary international law.’ See E.-I. A. Daes, op.cit., p. 56 (emphasis added). 15 Ibid. See also in this respect C. Parry ‘some Considerations upon the Protection of Individuals in International Law’, II Recueil des Cours, (1956) pp. 713−723.

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AUTONOMY AND THE INTERPLAY OF INDIVIDUAL AND COLLECTIVE DIMENSIONS 3) although the place of the sovereign State in international law remains to a degree sacrosant, it is difficult to overemphasize the notion that the State exists not as an end in itself, but as the means to welfare and prosperity of individuals (and we would add – groups) residing within its borders; its raison d'être is to be an effective means for the attainment of the individual and community values, and is thus, of a purely functional, pragmatic nature; 4) the relationship between the individual and contemporary international law is becoming more intimate as the international community becomes increasingly aware of the fundamental human values which underpin the law of nations. The concept of the international personality of the individual in international law holds encouraging prospects for the future. The full recognition of the individual as a subject of contemporary international law would be useful and important for the improvement of the enjoyment and the effective protection of human rights and fundamental freedoms at the national, regional and international level; 5) as Article 1, common to both Covenants, provides expressis verbis: ‘All peoples have the right of self-determination . . .’, it constitutes one of the cornerstones on which the legal basis of the struggle of national liberation movements and of their protection is based. The recognition of the observer status of the Palestine Liberation Organization and certain African liberation movements by the United Nations and other international organizations, clearly shows that the role of the liberation movements is on the increase and has a significant impact on international relations and the evolution of international law. The development is also indicative of the fact that the growing and ever-changing needs and the interdependence of communities and the real interest of modern society requires the existence of various subjects of international law. The study undertaken by the Special Rapporteur shows that, although it is a long way to the full recognition of the individual as a subject of contemporary international law, its legal standing as one of the prime beneficiaries of international law (especially what concerns the protection of individual human rights) is nonetheless firm and stable. Since individuals are not atomized entities (and we have already tried to refute this notion), and are, moreover, partly defined by the mode of their integration into specific groups, both national and international legal orders should have responded to the challenge of groups rights. The biggest challenge they were presented with was the question of balance between individual and group ‘ingredients’ in the relevant legal provisions. How the issue was handled in the legal domain and at the international level is our next and immediate concern. 2.2. Travaux Préparatoires: Orwellian Language vs. True Acceptance of Contradictions ‘Doublethink’ is the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them

G. Orwell 69

ZELIM A. SKURBATY In the recent legislative history on minority-related issues there is nothing that might suggest that the preservation of cultural diversity is an accepted, matter-of-fact idea or virtuality. Far from it, despite the fact that the opposite – the idea of (forceful) assimilation – openly clashes with the beau ideals of Western individualism, democracy, and freedom. It is the hidden imperative of a State and Sovereignty, which has prompted the States – both socialist and capitalist – to nip in the bud the initial proposal to include an Article on minorities in the Universal Declaration. ‘Communist’ China, ‘non-aligned’ India and the ‘capitalist’ United Kingdom have united in the belief that the entire Article should be deleted.16 As stated in the introduction to the present book, the meaning of international legal norms vis-à-vis minority groups (including the nascent provisions on autonomy) is an imposition of specific obligations upon States designed to facilitate the preservation of those differentiating features on which those groups place a high premium. The obligations can be pressed up to a point after which any sub-State entity should be given an opportunity to find other forms of interdependence, i.e., to exercise any appropriate (e.g., the so called internal or external forms) form of the right to self-determination. On the less dramatic side, the States might assume obligations both within the domain of their internal (municipal) law and pursuant to the 1966 International Conventions and bilateral treaties (where there are specific provisions concerning minorities), which they signed (or acceded to). The specific measures the States pledge to undertake can be subdivided in legal jargon into two major categories: those designed to prevent the discrimination of the members of minority groups (non-discriminatory legal provisions and practices), and those aimed at helping the minorities to catch up with and to be on par (in terms of socio-economic and cultural opportunities) with the dominant group (preferential treatment or affirmative action programmes). What follows is an account of the discussion, dissent and debate of the relevant – and uniquely legal – provision of an important international instrument, a provision, containing the essence of the international institutionalized response from the international community. Reliving the debate, however, is a rewarding experience because it gives a firsthand account of the vectors of power that have contributed to the particular 16

See UN Doc. E/CN.4/SR. 73, at 5 (1948). In supporting this proposal, Eleanor Roosevelt, a U.S. delegate to the UN and a chairman of the Commission for Human Rights, took a diplomatic tact when she pointed out that, ‘the aim of States was to assimilate and absorb large foreign groups, and to make them part of the nation. Unless all the citizens of a given country could speak the same language, there was the danger that public order might be disrupted by persons who might not understand their duties as citizens of the country in which they were a minority. It was not a question of teaching children in a language different from that of the majority, but of adult persons who would be unable to assume their duties as citizens of the larger country’, see UN Doc. E/CN.4/SR. 73,, p. 7. In a more open fashion, Wilson (United Kingdom), stated that ‘the principle of diversity in some States, far from raising cultural levels, might create minority problems’. Op. cit., p.12. The Article on minorities was deleted by ten votes to six. UN Doc. E/CN.4/SR.74, at 5 (1948).

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AUTONOMY AND THE INTERPLAY OF INDIVIDUAL AND COLLECTIVE DIMENSIONS configuration of the clause. The problems which concerned the drafters of Article 27 are still at the sharp end of human rights law in general, and minority and groups rights in particular, without any one of them being crystallized into any final or even workable form. Thus, the reasons why we have chosen to parse this Article in the context of autonomy and minority rights are the following: a) it is the most important legally binding provision in the whole discourse of international human rights law; b) as a corollary, it provides the most widely used (and abused) avenue of complaint or redress for persons belonging to specific groups; c) it embodies the compromise between seemingly mutually-cancelling dimensions, such as those for individual and collectives; d) it is an outcome of a fierce debate, ‘where hundreds of schools of thought’ were ‘contending’ and representing the full palette of the then existing powers, systems and opinions; e) it reflects an institutional response from the international community, not a regional organization. We can credit this Article for both successes and failures of the minority system, autonomous arrangements included, as it stands today without mulling over similar less legally important and meaningful provisions in other relevant instruments. With this in mind, we shall try to proceed in a manner, which might avoid any suspicion of arbitrary or subconscious selectiveness. 2.2.1. Numerical Factor, Positive/Permissive Formulation The Drafting Committee, on its 1st Session (1947) considered the following proposal ‘In States inhabited by a substantial number of persons of a race, language or religion other than those of the majority of the population, persons belonging to such ethnic, linguistic or religious minorities shall have the right to establish and maintain, out of an equitable proportion of any public funds available for the purpose, their schools and cultural and religious institutions and to use their own language before the courts and other authorities and organs of the State and in the press and in public assembly.’17

We see here the emphasis on the numerical factor, albeit without qualification (what is ‘substantial’?), and a positive formulation of the right formulation withheld later on at the 9th Session (1953) of the Commission on Human Rights:18 ‘There was also some discussion on the extent of the obligations of States towards minorities. A proposal that “the State shall ensure to national minorities the right” was rejected.’19 The proposal that was rejected20 by eight votes to four, with four abstentions was formulated as follows: ‘The State shall ensure to national minorities the right to use 17

The proposal E/CN.4/21, annex A (Secretariat) Article 46 [27] (hereinafter, if not otherwise stated, the emphasis is that of the author’s) 18 A/2929, Chapt. VI, §18. 19 E/CN.4/5R.369, p. 4 (PL) 20 the proposal E/CN.4/L.222 (SU)

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ZELIM A. SKURBATY their native tongue and to possess their national schools, libraries museums and other cultural and educational institutions’.21 On second thought, though, the proposals of a more specific character, ‘to possess their national schools, libraries, museums and other cultural and educational institutions’, were not accepted.22 It was argued further that, ‘under such a text which imposed a positive obligation on States, minority consciousness could be artificially awakened or stimulated’.23 The formula ‘“the persons belonging to such minorities shall not be denied the right”, which was adopted, seemed to imply that the obligations of States would be limited to permitting the free exercise of the rights of minorities’.24 The foregoing qualification of a minority qua group had popped up almost à la Freudian slip,25 because already in 1951, at the 5th (1950) and 6th (1951) Sessions of the Third Committee [A/5000, §119], ‘[t]here was general agreement on the basic provision that persons belonging to a minority should not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’. The text elaborated by the Commission on Human Rights was widely regarded as satisfactory.26 2.2.2. ‘Persons Belonging to’ vs. ‘Minorities’ Why was the question of protection of minorities qua groups, especially concerning their equal status with the majorities, considered so vital? Because, ‘It was agreed that, while Article 2, paragraph 1, and Article 24 [26] of the draft Covenant on Civil and Political Rights contained a general prohibition of discrimination, differential treatment might be granted to minorities in order to ensure them real equality of status with the other elements of the population. It was felt that an Article on this question 27 should be included in the draft Covenant on Civil and Political Rights.’

But what meaning should be invested in the notion of ‘minorities’? The ensuing discussion on the meaning of the word ‘minorities’ at the 6th Session (1950), 8th Session (1952), 9th Session (1953) of the Commission on Human Rights [A/2929, Chapt. VI, §184], resulted in an agreement that ‘the Article should cover only separate or distinct groups, well-defined and long-established on the territory of a

21

E/CN.4/SR.371, p.6. E/CN.4/SR.257, p.5 (PL); E/CN.4/SR. 368, p. 4 (SU), p.8 (RCH), p. 14 (SU), p. 16 (F); 23 E/CN.4/5R.368, p. 9 (RCH); E/CN.4/SR.369, p.5 (GB) 24 E/CN.4/SR.368, p. 12 (YU); E/CN.4/5R.369, p. 12 (USA). 25 A verbal mistake that is thought to reveal an unconscious belief, thought, or emotion. See The American Heritage Dictionary of the English Language. 26 A/17C.3/SR.289, §34 (SU); A/C.3/SR.290, §4 (PL); A/C.3/SR.291, §21 (YU); A/C.3/SR.366, §29 (LIB), §53 (EC); A/C.3/SR.401, §2 (BSSR) 27 Commission on Human Rights, 5th Session (1949), A/2929, Chapt. VI, §183 22

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AUTONOMY AND THE INTERPLAY OF INDIVIDUAL AND COLLECTIVE DIMENSIONS State’.28 This appeared to be the meaning of the opening clause, ‘[i]n those States in which ethnic, religious or linguistic minorities exist’.29 According to one opinion, the draft Covenant should deal with ‘national minorities’30; according to another opinion, ‘ethnic or linguistic groups’31; according to a third suggestion, ‘national, ethnic, religious or linguistic minorities’.32 The expression, ‘ethnic, religious or linguistic minorities’, was adopted.33 The hybrid Article under the heading of ‘amendment’34 had taken the following shape: ‘In those States in which stable and well defined ethnic, religious or linguistic minorities have long been established, persons belonging to such minorities should not be denied the right, in community with the 35 other members of their group to enjoy their own culture, to profess and practise their own religion or to use their own language.’

It was proposed to modify the text of the amendment36 by deleting the phrase ‘stable and well defined’ and by replacing the words ‘have long be established’ by the word ‘exist’. The first clause should then read: ‘In those States in which ethnic, religious or linguistic minorities exist’. The proposal, as modified orally, was adopted by five votes to one, with ten abstentions.37 It was thought that disruptive tendencies might result if ‘every person’ were to claim the benefit of the rights of minorities. For this reason, it was decided to qualify the exercise of minorities’ rights with the clause ‘in 28 E/CN.4/SR.256, p.5 (IND); E/CN.4/SR.257, p.3 (RCH); E/CN.4/SR.368, p.9 & p.14 (RCH), p. 17 (F); 29 E/CN.4/SR.369, p. 8, (U), p. 15 (RCH), p. 16 (SU); E/CN.4/SR.370, p. 11 (AUS). 30 E/CN.4/SR.369, p.6 (PAK), p. 9 (UkSSR), p.10 (AUS), p.13 (SU), p. 14 (GB); E/CN.4/SR.370, p.8 (PI), p. 11 (AuS) 31 E/CN.4/SR.369, p.7 (IND) 32 E/CN.4/ SR.369, p.9 (ET), p. 15 (RCH)] 33 ibid. 34 Amendment E/CN.4/L.261 (RCH) to E/2556 (Sub-Commission) 35 The analogous phrase ‘in community with others’ can also be found in Article 18(3) of the CCPR, concerning freedom of religion: ‘1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching’. It is noteworthy that no limitations of Article 18 – ‘necessary to protect public safety, etc.,’ − are permitted in Article 27. It compares also favourably with the next paragraph of the same Article which stipulates that ‘3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’, and the 1947 draft by the Sub-Commission of a minority provision to be inserted in the Declaration of Human Rights, which stated that persons belonging to minority groups shall have institutional and linguistic rights ‘as far as is compatible with public order and security’. UN Doc. E/CN.4./52 at 9 (1947). 36 E/CN.6/L.261. 37 E/CN.4/SR.371, p .6.

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ZELIM A. SKURBATY community with the other members of their group’.38 As the Commission’s report shows, the mode of naming of a minority group was considered to be a factor having a direct influence on the nature of their claims: ‘Those who were in favour of the expression ‘ethnic, religious or linguistic minorities” were of the opinion that persons belonging to such minorities should have the right, in community with the other members of the group, ‘to enjoy their own culture, to profess and practise their religion or to use their own language. Those who were in favour of the expression ‘national minorities’ emphasized the right of such minorities ‘to use their native tongue and to possess their national schools, libraries, museums and other cultural and education institutions.’39

2.2.3. ‘Sheer Romanticism’ or the Roots of ‘Group-Protection’ Phobia Factions that clashed on a mode of minority protection shared one overriding fear: that any protection of a group might give an incentive to invoke the principle of selfdetermination with the concomitant secessionist claims. On the one hand, as one proposal held it: ‘Every people and every nation shall have the right to national selfdetermination’;40 on the other – a kind of a consensus of opinion was established among the State Parties, that the provisions concerning rights of minorities, ‘should not be applied in such a manner as to encourage the creation of new minorities or to obstruct the process of assimilation’.41 It was widely felt that ‘such tendencies could be dangerous for the unity of the State’.42 No minority, it was argued, ‘had the right to subversive action, and the Article [on self-determination] would not give it that right’.43 The long and ominous shadow cast by Article 1 was unsettling, especially: ‘the dangers of mistaken or over-simplified theories regarding the exercise of that right, which might lead to confusion and disorder; if selfdetermination was misused and considered as an absolute right, nothing but anarchy could result. The right could be exercised only within the limits of national sovereignty. It must not be used to undermine a sovereign Power’s rights over its territory and national resources; to use the right of self determination in order to incite dissident minorities to rise 38

E/CN.4/5R.369, p. 6 (GB). See UN Doc. E/2447, supra note 16, para. 53. See also the statements by India, UN Doc. E/CN.4/SR.369 at 7 (1953); the Soviet Union, UN Doc. E/CN.4/SR.368 at 14 (1953); the Philippines, UN Doc. E/CN.4/SR.370 at 8−9 (1953). 40 Commission on Human Rights, 5th Session (1949), the proposal E/CN.4/237 (SU). 41 A/2929, Chapt. VI, §186 E/CN.4/5R.368, p.10 (RCH); E/CN.4/SR.371, p. 5. 42 Ibid. 43 Statement by Saudi Arabia during the debate on Article l, 10 GAOR, C.3 (648th mtg.), UN Doc. A/C.3/SR.648 at 121 (1955). It is interesting to note how quick some States were to equate Article 1 and Article 27 of the CCPR despite the fact that the drafters did their utmost to separate them both linguistically and semantically and to infuse them with different meanings. It shows, moreover, that self-determination was perceived as a loaded field common to both articles despite the intentions of the drafters. 39

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AUTONOMY AND THE INTERPLAY OF INDIVIDUAL AND COLLECTIVE DIMENSIONS against the State and imperil its stability would be as contrary to the true spirit of self-determination as aggression or subversion itself. And yet, as history went to show, groups with subversive and aggressive aims had been used by foreign Powers to overturn the governments of countries whose territory they wish to seize. Many independent countries had been the victims of irresponsible groups which had been encouraged to destroy the national unity of their own country. Furthermore, the right of selfdetermination must never be confused with the right of secession. Secession was the outcome not of respect for the right of selfdetermination but of disregard for fundamental human rights and the absence of the free consent of peoples to the exercise of the right of selfdetermination . . . [No] country represented on the Committee would be in existence if every national, religious or linguistic group had an absolute and unrestricted right to self-determination.’44

Also rejected was a proposal that ‘[e]very person shall have the right to show freely his membership of an ethnic or linguistic group, to use without hindrance the name of his group, to learn the language of this group and to use it in public or private life, to be taught in his language as well as the right to cultural development together with other members of this group’.45 In the light of time’s perspective, it is clear that the way the Commission has handled the problem of a ‘national’ or ‘ethnic homeland’, addressed later by the Badinter Commission, illustrates a lack of foresight (to put it mildly). During the 16th Session (1961) of the Third Committee46 some States were especially apprehensive of the prospect of ‘minoritization’ of the immigrant groups, which might gradually extend their claims to extreme forms of self-determination: ‘Many delegations representing countries of immigration stressed . . . that persons of similar background who entered their territories voluntarily, through a gradual process of immigration, could not be regarded as minorities, as this would endanger the national integrity of the receiving 47 States ; while the newcomers were free to use their own language and follow their own religion, they were expected to become part of the national fabric. It was emphasized that the provisions of Article 25 [27] should not be invoked to justify attempts which might undermine the 48 national unity of any State.’

In view of the clarification given on those points, it was thought unnecessary to specify in Article 27 that ‘such rights may not be interpreted as entitling any group settled in the territory of a State, particularly under the terms of its immigration laws, to form within that State separate communities which might impair its national 44

13 GAOR C.3 (888th mtg.), UN Doc. A/C.3/SR.888 at 257 (1958). The proposal E/CN.4/L.225 (YU), E/CN.4/5R.368, pp. 5-7 (YU), E/CN.6/SR.370, p.6. 46 A/5000, §120. 47 A/C.3/SR.1103, §50 (LIB). 48 A/C.3/SR. 305, §78 (U); A/C.3/SR. 1104, §21 (RMM). 45

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ZELIM A. SKURBATY unity or security’.49 Latin America formed the leading edge of the restriction tide50: ‘It was further stressed that the autochthonous population in Latin American countries could not be regarded as a minority. It should be treated as a vital part of the nation and should be assisted in attaining the same levels of development as the remainder of the population.’51 Although the Commission on Human Rights has acknowledged that the proposed amendment52 was supported by the majority of the Commission’s members, it had to reject it.53 However, after a second thought, the Commission decided that the limited rights guaranteed by the Article to the individual members of immigrant groups, were not likely to affect ‘national unity’ of States, be it by specific political activities, by using cultural institutions, or by spreading ‘political theories’.54 The prevailing sentiment during the debate55 was that minorities, or, to be in keeping with the accepted jargon, persons belonging to minorities, should be allowed to be assimilated if they (presumably) wished so: ‘A certain amount of discussion took place on the general questions of integration of minorities and protection of minorities. The question was raised whether protection should be accorded to individual members of a minority group or to the group as such’.56 It was emphasized in this connection that ‘any assimilation which might take place must be clearly voluntary’57, and that ‘members of minority groups should not be deprived of the rights enjoyed by other citizens of the same State, so as to enable them to integrate should they so desire’.58 Several delegations stated that ‘existing minorities were groups which had succeeded in maintaining their separate identities and that Article 25 [27] should not be used to encourage the emergence of new minorities’ and ‘pointed out that the protection of minorities was not meant to derogate from the principle of majority rule; there were regions, such as certain parts of Africa which were dominated by privileged minorities and Article 25 [27] was not intended to protect such domination’.59 But subject to this point, it would be fair to suppose that the majority rule might suppress the subjective willingness of the minority to maintain its special 49

E/CN.4/5R.368, p.10 (RCH); p. 16 (F). A/5000, §121. 51 A/C.3/SR.1103, §§ 20-21 (RCH), §43 (EC). 52 Providing that minority rights should not be interpreted as entitling immigrant groups settled in the territory of a State ‘to form within that State separate communities which might impair its national unity or its security’ – see UN Doc. E/2447, at 75. 53 Ibid. 54 UN Docs. E/CN.4/SR.370, at 4, 7, 9−10. 55 A/5000, §122. 56 A/C.3/SR.1103, §39 (IND); A/C.3/SR.1104, §18 (BR). 57 A/C.3/SR.1103, §30−31 (K); A/C.3/SR.1104, §11 (SU). 58 A/C.3/SR.1103, §54 (YU); A/C.3/SR.1104, §3 (MEX), §13-14 (YU), §23−25 (RCH), §32 (SA). 59 A/5000, §124. 50

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AUTONOMY AND THE INTERPLAY OF INDIVIDUAL AND COLLECTIVE DIMENSIONS characteristics. The challenge seemed far from being academic posturing. There is a rich irony in the fact that it was the government of Yugoslavia that took a firm stand on the issue vindicating the ‘subjective element’: ‘The Yugoslav Government wishes to underscore its conviction that the so-called “subjective factor” is in many respects dependent on the political atmosphere, and the cultural and social circumstances prevailing in the individual social communities in which the members of minorities live and work. Historical experiences have shown that the “indifference” of the members of minorities towards their national origin, position and rights [is], as a rule, the consequence of the social and other circumstances in which they live. In societies with a prevailing negative attitude of the “majority” towards the “minority” the members of the minorities are fearful that any declaration of one’s national, ethnic, cultural and other characteristics might be interpreted as a so-called “civil disloyalty” on his part as citizen of the country concerned. Therefore, it would be inappropriate to ascribe too much importance to the need of a “declaration of desire” by the members of any minority in order to preserve their own national, ethnic, cultural and other features and to manifest their awareness of their affiliation to a particular minority, especially in the case of a minority which has for decades been subjected 60 to the pressures of systematic assimilation and denationalization.’

Some States, especially Latin American ones, were even less willing to accord the status of minorities to indigenous populations. The unwillingness to recognize a group as a collective entity, with prospects of acquiring an international juridical personality, was covered up by false concerns of the State of its economic wellbeing. The position of Mexico in the debate has become paradigmatic in that it faked caring to avoid a status problem. Its government pointed out that Mexico, ‘was at present earnestly pursuing the incorporation within its national community of large indigenous groups which had hitherto led, so to speak, a marginal existence owing to lack of communications and the rudimentary level of economic development attained in the areas in which they lived. Those groups had remained untouched by the benefits of modern civilization, and had their own modes of thought and their own languages, but it would be sheer romanticism to make them into minorities.’61

60

See F. Capotorti, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities (United Nations, New York, 1991), pp. 8−9. Also in: (UN docs E/CN4/Sub.2/384/Rev.1, Sales No. E78XIV1), ibid. 61 See UN Doc. E/CN.4/SR.368 at 10 (1953).

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ZELIM A. SKURBATY If we assume some sort of conceptual succession between the reasoning above and their modern interpretations, then the ‘General Comment’ of the Human Rights Committee (1994) on Article 27 would represent a typical example of what I call below a ‘post hoc legal rationalization’. It is an attempt to infuse the rather ostensible message – easily inferred from the above-cited travaux préparatoires – with some profitable motives, existent, in all probability, only in the heads of the interpreters: ‘The terms used in Article 27 indicate that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language. Those terms also indicate that the individuals designed to be protected need not be citizens of the State party. In this regard, the obligations deriving from Article 2(1) are also relevant, since a State party is required under that Article to ensure that the rights protected under the Covenant are available to all individuals within its territory and subject to its jurisdiction, except rights which are expressly made to apply to citizens, for example, political rights under Article 25. A State party may not, therefore, restrict the rights under Article 27 to its citizens alone.’62

And further: ‘Article 27 confers rights on persons belonging to minorities which “exist” in a State party. Given the nature and scope of the rights envisaged under that article, it is not relevant to determine the degree of permanence that the term “exist” connotes. Those rights simply are that individuals belonging to those minorities should not be denied the right, in community with members of their group, to enjoy their own culture, to practice their religion and speak their language. Just as they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights. As any other individual in the territory of the State party, they would, also for this purpose, have the general rights for example, to freedom of association, of assembly, and of expression. The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria.’63

Although the very fact of the more ‘profitable’ interpretations of the existing provisions should be viewed favourably (their non-binding character notwithstanding), the real meaning of such efforts will be more understandable if we take into account the notion of the progressive realization of the basic, core concepts concerning ‘minorities’, ‘self-determination’, etc. 62

See Report of the Human Rights Committee, Vol. I, GAOR, Forty-ninth Session, Supplement No. 40 (A/49/40), pp. 108−109. 63 Ibid.

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AUTONOMY AND THE INTERPLAY OF INDIVIDUAL AND COLLECTIVE DIMENSIONS 2.2.4. Finalized Version of Article 27: the Transpired Rationale and the Caveat The foregoing discussions suggest a simple conclusion for which no originality can be claimed at this stage of our discourse: the recognition of the collective or group dimension does not mean an advocacy of its supremacy over individual rights; even less the impairment of the responsibility of individual citizens for their individual decisions and actions; and even less – the imposition of collective guardianship over individual’s morals or self-consciousness. It is the hope of the author that he made this thesis clear, because to expand on this point in detail would be a resumption of the line of argumentation taken up above. This having been said, let us revenons à nos moutons.64 What the laborious debate amounted to was the following version of Article 27 of the Covenant of Civil and Political Rights, which was destined to become the only legally binding provision concerning ‘minorities’ in the whole discourse of international law of human rights65: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.’66

In the light of the considerations set out above, it becomes obvious that the particular wording and message of the Article are not random creatures and cannot be viewed just as an accident of drafting, but represent a deliberate decision, having a loosely concealed background determinant. The travaux préparatoires of Article 27 as well as their wording indicate the reluctance of the drafters to accept any reference to minority or group rights per se. The overriding interest, propelling the States to come to this particular decision was to avoid conferring an international legal personality on groups (or collectivities). I consider this as the single most important distinction and could theoretically leave out everything else as having no added (explanatory) value. But the rationalization of this avoidance does add value to the rationale of the overall States-Minority problematique. First, by denying the victimized groups an international legal personality States deny a ‘minority’ or a ‘people’ the capacity to vindicate their rights before a competent international institution, such as the

64

French., literally. ‘let us return to our sheep’, with allusion to the confused court scene in the old French Farce de Maistre Pierre Pathelin (c. 1470). ‘Let us return to the subject’: an exhortation to cease digressing. See Oxford English Dictionary 65 The Council of Europe Framework Convention on Minorities is of a programmatic nature and does not provide any venue for individual complaints. 66 In International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, entered into force 23 March 1976, G.A. Res. 220A (XXI), U.N. Doc. A/6316 (1966), 999 UNTS 171, reprinted in 6 ILM 368 (1967).

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ZELIM A. SKURBATY Committee on Human Rights established by the Covenant.67 How? Because the Optional Protocol to the Covenant gives the right to file communications to the Committee only to individual members of groups, not groups as such, which means that such communications stand every chance of being rejected at the level of admissibility criteria. Although the Human Rights Committee in its ‘General Comment’ (23 (fiftieth session, 1994) states that this Article establishes and recognizes a right which is ‘distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant’, a clear-cut distinction is drawn between ‘the right to self-determination and the rights protected under Article 27’, because ‘the former is expressed to be a right belonging to peoples and is dealt with in a separate part (Part I) of the Covenant’; self-determination ‘is not a right cognizable under the Optional Protocol’, while Article 27 ‘relates to rights conferred on individuals as such and is included, like the articles relating to other personal rights conferred on individuals, in Part III of the Covenant’ and – thus pigeonholed – ‘is cognizable under the Optional Protocol’.68 The fact the latter is the saving clause is apparent by the reference that ‘the enjoyment of the rights to which Article 27 relates does not prejudice the sovereignty and territorial integrity of a State party’.69 Second, the opening words, ‘[i]n those States in which . . .’, are a clear indication of the resistance to accept the broader concept of minority rights. From the purely legal standpoint, there is confusion here between the rights protected under Article 27 and the guarantees under Articles 2(1) (i.e., to enjoy the rights under the Covenant without discrimination as applied to all individuals within a State’s territory irrespective of their group affiliation), and Article 26 (equality before the law and non-discrimination in respect of rights granted by the States) – a fact profitably exploited by certain States (e.g., France,70 Turkey, India, to name 67

10 GAOR C.3 (642d mtg.), UN Doc. A/C.3/SR.642 at 90 (1955). See Report of the Human Rights Committee, Vol. I, GAOR, Forty-ninth Session, Supplement, No. 40 (A/49/40), pp. 107−108. 69 Op. cit., p. 108 70 The example of France, so far as the recognition of minorities is concerned, is most telling. Numerous cases submitted by French citizens of non-French ethnic origin (e.g., Bretons or Corsicans) to the Committee under Article 27, were uniformly dismissed by the Government of France under the pretext that ‘in the light of Article 2 of the “Constitution of the French Republic . . . Article 27 of the Covenant is not applicable so far as the ‘Republic’ is concerned”. Article 2 of the French Constitution stresses the famous (and very much − historically − French) egalitarian principle, which ‘shall ensure the equality of all citizens before the law, without distinction of origin, race or religion’. When the Human Rights Committee requested France to submit the periodic report under Article 40 of the Covenant, it expanded on the egalitarian rationale for denial the minority rights: ‘since the basic principles of public law prohibit distinctions between citizens on grounds of origin, race or religion, France is a country in which there are no minorities and, as stated in the declaration made by France, Article 27 is not applicable as far as the Republic is concerned’. See 27 Documents CCPR/C/22/Add.2 and CCPR/C/46/Add.2. There was nothing left for the Human Rights Committee but to recognize its ‘incompetence’ − in the cases of 68

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AUTONOMY AND THE INTERPLAY OF INDIVIDUAL AND COLLECTIVE DIMENSIONS only a very few) when they deny both the minority rights and the existence of minorities as such. The fact has been heeded by the Human Rights Committee: ‘Some States parties who claim that they do not discriminate on grounds of ethnicity, language or religion, wrongly contend, on that basis alone, that they have no minorities’.71 The stance of the government of India is representative of the position taken by a number of States. The reference to ethnic minority (in Article 27) ‘does not apply to Indian society’, reads the country Report submitted to the UN Special Rapporteur A. Eide (as a reply to the questionnaire he sent out beforehand). Why? Because Article 18 of the CCPR, which ‘deals with the right to freedom of thought, conscience and religion’, is of greater ‘importance to India, which comprises people belonging to different religions, faiths and beliefs’.72 The said aspects of ethnic identity are addressed by Article 29 of the Indian Constitution which reads: ‘Any section of the citizens residing in the territory of India having a distinct language, script or culture of its own shall have the right to conserve the same. No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds of religion, race, caste or language. The Indian Constitution provides suitable protection to linguistic minorities to establish and administer educational institutions of their choice.’73

Third, no matter how liberally we interpret the text of the Article (and thus follow the advice of Francesco Capotorty), the words ‘shall not be denied the right’ – in contrast to the turned down ‘shall enjoy’ – are indicative of tolerance and concession, not of positive affirmation or even of a recognition of rights. The provision, as a safeguard for particular minorities, has a distinct negative purport because it gives a place of pride to an interdiction of interference with certain collective human activities, not to their positive protection. Again, it is difficult to e.g., T.K. v. France and M.K. v. France − ‘to consider complaints directed against France concerning alleged violations of Article 27’. Moreover, in S.G. v. France, G.B. v. France, R.L.M. v. France, and C.L.D. v. France (Communication No. 439/1990) the Committee observed that France’s declaration ‘is tantamount to a reservation and therefore precludes the Committee from considering complaints against France alleging violations of Article 27’. Only Committee member Rosalyn Higgins, in an individual dissenting opinion, argued that the French declaration need not be equated with a reservation, and that the Committee was competent to examine the Article 27 claim. 71 ibid. 72 See India, CCPR/C/37/Add.13, cited in A. Eide, Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems Involving Minorities. E/CN4/Sub.2/1993/34 10 August 1993 pp. 45−46. 73 Ibid.

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ZELIM A. SKURBATY reconcile an assertion that ‘Article 27 is expressed in negative terms’ with “the existence of a right’” which ‘requires that it shall not be denied’.74 It is rather evident from the above that the cited Commentary as a whole, is nothing but a string of post hoc legal rationalizations; and, although it sounds anecdotal to repeat endlessly the claims of groups in the context of an overriding, State-sided running commentary, it is exactly what the background debate – the travaux préparatoires of Article 27 of the Covenant on Civil and Political Rights – offers. The short lesson that comes out of this experience is something like this: all the motive power in all of the movements of the States Parties during the drafting of Article 27 was the instinct of State – and status-quo – preservation. States deliberately wished to adopt rules and procedures that would maximize the chances of survival of the political status-quo (or preservation). All the obstructions came from attempting to rely on something else than status quo. All the attempts at bridging the differences of opinions and claims proved to be half-hearted and ineffective. The provision (Article 27) has not provided either enforcement with temper, or conciliation with dignity. It could not strengthen the hand of a ‘minority’ representative in advancing claims for the minority but only – for the protection of the ‘minority’ members by a State. The background assumption that if individual rights were honoured, ‘minorities’ would have no legitimate or defensible claims to further – not to mention special – protection under international law, proved – as History and modern developments testify − wrong. Given the above mentioned political constraints on the drafting of Article 27, it went as far in this direction as it could possibly go. The debate over the content and context of Article 27, however, has paved the way for the realization that the State-Minority stand-off can be resolved, at the fundamental level, only in the form of an effective international legal arrangement which takes into account the collective – along with an individual − dimension of a ‘minority’. Knowing what we know now, one could put forward a well-founded assumption that the alleged form of such an arrangement could, ideally, be a legally recognized right (at both national and international levels) to autonomy.75

74

Ibid. It goes without saying that the semantic scope of ‘autonomy’ exceeds in our deliberations the notion of a ‘territorial autonomy’, pure and simple. 75

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PROBLEMS RELATED TO THE ECONOMIC VIABILITY OF AUTONOMOUS ARRANGEMENTS CENTRALISM AND FISCAL FEDERALISM Gisela Färber 1. THE IMPORTANCE OF THE FINANCIAL CONSTITUTION FOR AN EFFICIENT PUBLIC SECTOR Intergovernmental financial relations are crucial for the balance of power either in a centralist state or in a federal state. It has recently become also an important concern for supra-national organisations like the EU, EMU and other international relations e.g. the international climate negotiations. Independence, interdependence and general rules about intergovernmental tax and non-tax ‘prices’ build the frame in which governments ‘communicate’ with their voters as well as with regional and foreign tax payers and consumers of public goods. Centralist and federal systems differ strongly concerning intergovernmental financial relations. This paper shows the fundamental concepts of both presenting the respective approaches of the theory of public choice and of fiscal federalism. It starts with the contrast of the two opposing concepts concerning the division of public responsibilities among administrative units and independent jurisdictions on different federal tiers. To be able to determine in a nearly optimal way the volume and structure of the central, regional and local public goods, all jurisdictions need certain rights concerning taxation and public expenditures. Particularly regional spill-overs, and other imperfections in the intergovernmental relations, but also arguments in favour of an interregional solidarity cause the need for a system of fiscal equalization. There are different construction principles of fiscal equalization including horizontal intergovernmental transfer payments among different jurisdictions at the same governmental tier and – more often – vertical transfers from central government to state governments, from state to local governments, as well as directly from central to local governments. Financial equalization payments do not only exist in federal states, but also in centralist countries between central and local governments which have a certain autonomy to regulate local concerns. In part two, the paper is concerned with the fiscal constitutions of ‘real’ systems of centralist and federalist countries. Most centralist countries have started to implement federal elements like regional parliaments including certain autonomous 83

GISELA FÄRBER competences into their governmental and administrative structure. All federally constituted countries suffer under long established poorly constructed and unbalanced taxing and spending powers which actually provide increasing problems for the respective international competitiveness of the national economies. Against this background questions arise as to what are the future functions of fiscal equalization. How is it to be constructed? How much redistribution among jurisdictions is required? Should more horizontal elements of redistribution be implemented? Or should the central government take over more responsibilities of redistribution of tax revenues, and a more ‘centrally’ directed financial constitution be established? 2. ALLOCATION INSTRUMENTS IN CENTRALIST AND FEDERAL STATES 2.1. Principles of Political Decision Making and Supply of Public Goods in Centralist and in Federal States One of the most difficult questions in market economies is which public goods and how much of them are needed. The decisions about an optimal size and structure of private goods are coordinated by the market mechanism. But there are certain cases of so-called market failures in which the government sector has to guarantee or regulate a provision of goods or even to produce it by its own public administration or public enterprises because a private market supply will not be sufficient. In theoretical models, all information is available to determine the optimal quantity of public goods including an optimal taxation. In reality however, there is no wise dictator. Instead democratic elections are used to make the citizens’ preferences visible. That means that people vote for a certain bundle of public goods, for a certain political program according to their preferences. Politicians who want to be elected or re-elected offer those programs with which they hope to win the elections. Therefore, politicians are, in basic public choice model, mediators of citizens’ preferences for public goods. Centrally and federally constituted countries differ strongly in regards to the mechanisms of allocation decisions of public goods. In a centralist state, the central government decides about all public goods and has to guarantee the provision and administration of the public good equally across the whole territory. That means that only one government is elected and has the right to determine the size and the structure of public goods. Conflicts among diverging preferences are solved by majority decision for a certain program. Preferences of public goods, which are not offered by the winning party, are not satisfied. In federal states, the legislative responsibility is divided among several government tiers: Each of the many jurisdictions decides about the structure and volume of ‘their’ public goods and has to get the approval of their voters. That way, federal states have the ability to provide different bundles of public goods at state and local levels according to the diverging regional preferences of the respective regional and local voters. Also, the problems of ethnic minorities – which are always 84

CENTRALISM AND FISCAL FEDERALISM also connected with different preferences for public goods – can be solved by establishing a federal structure. The overwhelming advantage of a federal structure against a centralist state is the ability to cover diverging preferences for public goods. Therefore the number of ‘losers’, of unsatisfied preferences is much lower in federal states. Usually this advantage of benefits should exceed the additional costs of the higher number of governments and the higher costs of information necessary for political decision-making and for the voters. By a federal governmental constitution, the number of federal tiers and the number of jurisdictions on the different levels of governments is determined. This structure is not to remain unchanged for eternity. Rather changes concerning significant changes of preferences e.g. of ethnic groups can lead to separations or unifications of jurisdictions or even to moving frontiers of jurisdictions. Examples are the establishment of a new Canadian Province, Nunavut, located in the North and containing only 25,000 inhabitants, or the new determination of the frontiers of the Swiss Canton Jura according to the linguistic affiliation of the people. The developments of the last ten years in the territory of the former Yugoslavia show another more tragic example of the living structure of a multi-ethnic state. Economists tend to reduce economic transactions to the goal of efficiency. Since Musgrave published his ‘Theory of Public Finance’ two other fundamental goals of government activities, distribution and stabilisation, have been accepted.1 Efficiency however is the dominant decision criterion and is used to construct rules how to distribute the potential public goods among the government tiers in a federal state. According to the subsidiarity principle, the responsibility to decide about the structure and the amount of public goods should be as decentralized as possible, particularly if • • •

people in different regions show diverging preferences for public goods, diseconomics of scale exist. Additionally, the costs for innovation are lower at the decentralized levels, because only a limited number of citizens are forced to suffer under ‘administrative experiments’. In the positive case there are also strong incentives of imitation of the new procedures so that in general federal systems tend to be more innovative than centralist ones.

A centralization of responsibilities increases the efficiency of public good production in the cases of • •

economics of scale and regional spill-overs.

Since the discussions of public choice arguments we additionally know that the necessary political control is more effective at decentralized government levels. It 1

See R. A. Musgrave, The Theory of Public Finance (New York, 1959).

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GISELA FÄRBER also increases in the cases when direct democratic instruments are provided, and is weaker the less people can influence politicians and the political decision making processes. Concluding all arguments for a federal structure of responsibilities for public goods, there are as many optimal government tiers as public goods2 because only occasionally two public goods are covered by identical areas of homogeneous preferences. But special service jurisdictions only exist exceptionally. Normal jurisdictions usually bundle those regional and local public goods with a comparable spatial homogeneity. The efficiency losses due to an imprecise optimal cut of the jurisdiction according to the preferences mostly are more than compensated by the efficiency gains resulting from the fact that a lower number of administrative bodies has to be established and that capacities for public services which necessarily have to be offered are better occupied. 2.2. Division of Responsibilities: Two Types of Federalism Federal states have been established for various reasons. The Swiss federation was set up as a union against a suppressor. Belgium and the former Yugoslavia took it as a way to solve their multi-ethnic problems. Many of the former British colonies3 – the USA, Canada, Australia, but also India and Nigeria – chose federal structures for their independent life in the frame of the Commonwealth. Germany established the Second German Empire under the hegemony of Prussia, which was clever enough not to continue its military strategy to unify the independent German states but to establish a supra-state common government level. Austria’s federal system has existed since 1922 when after the break down of the Imperial and Royal Monarchy a democratic government system was set up. Nobody would expect all these federal systems to be constructed identically. But two basic types of federalism, which dominate all variations, can be distinguished: • •

federal systems where the tiers are in principle independent from each other, and the so-called systems of administrative federalism with interconnected responsibilities.

The second type is realised in Germany and in Austria and in principle also in the European Union. Here governmental responsibilities as concerned with legislation 2

From this theoretical point of view, the approach of FOCJ (Functional, Overlapping, and Competing Jurisdictions) has been developed by Bruno S. Frey and Reiner Eichenberger (see their contribution: ‘Jenseits des Gebietsmonopols des Staates’ in Gerken, Lüder; Schick, Gerhard (eds.) Grüne Ordnungsökonomik: Eine Option moderner Wirtschaftspolitik, (Marburg, 2000) p. 331. 3 Astonishingly, the former French colonies did not set up federal, but only unitarian or centralist government structures.

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CENTRALISM AND FISCAL FEDERALISM and with administration are not at the same federal tier: e.g. in Germany, the Länder are according to Article 84 GG responsible for the execution of federal laws. The Federal Parliament therefore passes in many fields federal laws which are then executed by state or even local administrations in their proper responsibility. If a federal law regulates details of state administration the approval of the Bundesrat is required. From this point of view it is quite logical that members of the Bundesrat are representatives of state governments and not of state parliaments or otherwise directly elected representatives as it is regulated by the Senate model which is common for the type of federalism with independent responsibilities. Which of the two basic types of federalism provides a more efficient public sector is not clear ex ante. Both systems offer certain advantages and suffer from other disadvantages: •

•

•

•

Federal tiers which are widely independent from each other can better follow different regional preferences while administrative federalism tends towards a high degree of centralization of legislation and highly regulated administrative procedures. From the ideal perspective however, the freedom to decide how to execute a federal law, how to produce or guarantee a public service which is regulated by federal law in general terms should be broad enough to find different regional administrative solutions according to regional preferences. Administrative federalism is easily open for changes of public good responsibilities, particularly for centralization if changes in the tier of responsibility are required according to the above-mentioned criteria. Economic and technical development demands a fundamental revision of federal responsibilities every 30 years. During that period, other more marginal changes may be required. In the federal systems, which are not interconnected, changes of responsibilities from state to federal government level are difficult to negotiate and tend to be extremely expensive for the central government. The large part of federally uniform law in administrative federalism additionally provides advantages concerned with information costs for those citizens who are highly mobile in their economic or private activities. The larger a country is and the less people cross state frontiers the less this perspective becomes important. In small countries a certain harmonization among state regulation is necessary particularly in those cases in which citizens tend to optimize their economic sphere in a way, which reduces the same rights of people in other parts of the country. Interpersonal (re)distribution is easier in those federal systems which have a high degree of central legislation. In highly decentralised federal countries redistribution of the government sector is limited to the degree which is accepted within a jurisdiction. Therefore, a country-wide uniform redistribution is lower in the independent federal constitutions,

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GISELA FÄRBER while it is higher in the types of administrative federalism and – certainly – in centrally constituted countries. What kind of federal system should be established is before this background depends on the size of a country, the interregional mobility particularly of the labour force and the consumers, the homogeneity of citizens’ preferences and their preference for a high degree of interpersonal redistribution. 2.3. Structure of Financial Constitutions in Federal States The structure of financial constitutions has to be discussed in three parts, firstly the budgetary spending competences, secondly the taxation competences, thirdly the construction of fiscal equalization. To enable the jurisdictions of a federal system to fulfil their responsibilities it is necessary to equip them with certain rights and securities. The leading model was established by Samuelson4 and Lindahl who asked in the 1950s which would be the optimal size of the government sector – in centralist states.5 According to the ideas of public finance welfare economics the two economists stated that citizens would have additional benefits from the provision of public goods and would suffer from a respective withdrawal of benefits by the taxes, which they had to pay for the provision. Because of different marginal benefits of public goods and tax payments dependent on the size of the public budget – the first marginal benefits of public goods are high while the first units of taxes only have small losses of benefits – the optimal size of government budgets is at the point where the marginal gains of benefits from public goods and the marginal losses of benefits resulting from tax payments are equal. Although nobody has the exact information at which point the optimal budget is reached, democratic elections expose the voters’ preferences in a nearly optimal way. This idea can be enlarged to the construction principles of federal financial constitutions. To be able to determine in a nearly optimal way the volume and structure of the central, regional and local public goods, all federal jurisdictions need the rights • •

to spend their taxpayers’ money independently and to levy taxes autonomously at least at the margin.

The power to determine both sides of the public budgets is essential for the democratic allocation mechanism in the public sector. For the empirical construction of fiscal constitutions the details of both rights are very important. But because of the fact that the first three different stages of a fiscal constitution – the distribution of responsibilities for public goods, the spending competences and the rights of 4 See P. A. Samuelson, ‘Diagrammatic Exposition of a Theory of Public Expenditures’ in Review of Economics and Statistics (1955), p. 350. 5 See E. Lindahl, Die Gerechtigkeit der Besteuerung, (Lund, 1919), p. 85.

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CENTRALISM AND FISCAL FEDERALISM taxation –- never will work perfectly, a fiscal equalization is necessary at the last fourth stage for compensation of the inbuilt deficits. 2.3.1. Budgetary Spending Competences Spending competences are narrowly connected with the right to decide about the amount, the method, and the quality of public service production. It is obviously rational that the federal tier, which is responsible for the determination of a public good, should also be responsible to pay for the provision. In all unconnected federal systems spending rules are constructed according to that principle: All jurisdictions pay for those public goods for which they have taken legislative decisions. Although there are almost always direct and indirect effects of the public goods provision of a jurisdiction to the economy, the production functions of ‘foreign’ public services and the taxation base of other jurisdictions they only scarcely reach a level of importance that the burdened jurisdictions complain about. Exceptions are sometimes concerned with vertical financial relations particularly when the higher tier affects the budgets of the lower ones by its legislation. The debate about the ‘unfunded mandates’ in the USA is a good example and led to a reform of the 6 respective intergovernmental relations in the mid-1990s. In general, in federal systems the principle that the responsible legislating jurisdiction has to pay for the production or provision of public goods is fulfilled and is a certain guarantee for the efficient provision of public goods. Otherwise the burden of taxation, which is a direct result of public spending, becomes too high and th government will not be re-elected. It is obvious that the rules of public borrowing are very important for the taxation-spending mechanism. If governments are not able to shift financial burdens to other generations of taxpayers the mechanism is workable. In the systems of administrative federalism, the spending rights are constructed differently: They are not tied to the legislation right, but to the administration competence. In Germany as well as in Austria and in the European Union, the executing federal tiers have to respect expenditures, which are ‘ordered’ by the central legislation. Exceptions are valid for certain direct transfer payments. Article 104a(3) of the German Grundgesetz indicates e.g. so-called ‘Geldleistungsgesetze’ which regulate certain social transfer payments of which federal and state governments share the financial burdens. Among this type of public expenditure include location aids, students’ transfers and loans, and young parents aids. Additionally, public expenditures in the context of the European agricultural market are financed, precisely: refunded from the European budget while the member states have to bear the costs for the administration. But in general, state and local governments have to cover the costs for those public goods which are regulated – partly in a very detailed way – by federal laws out of their budgets, out of the tax 6

C. R. Wise and T. L. Brown, When Governments disagree: A Comparative Analysis of Conflict Resolution Mechanisms in Intergovernmental Relations in Three Nations, <www.napawash.org/fsp.nsf/83…2a339852568da0014693e?OpenDocument>, S. 10

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GISELA FÄRBER revenues they impose on their regional or local taxpayers. It is also obvious that the principle of congruency of legal responsibility and of cost carrying is not fulfilled. From an isolated perspective it can be expected that huge distortions − an inefficient and too high supply of public services under federal regulation and too few regional and local autonomous public goods − will result from that construction mistake. Before that background the question should be kept in mind what are the resulting compensating constructions on the two following stages of the fiscal constitution concerning taxation and fiscal equalization. 2.3.2. Taxation Competences If the ideals of optimal taxation could be implemented in reality there would be no problems concerning the distribution of taxation principles. In a centralist state, a lump sum tax would be levied which for its part would not cause any welfare distortion, and the taxation-spending mechanism could work. The sum of welfare distortions might be marginal in the case where all federal tiers have the right to levy a lump sum tax which is constructed solely to finance public expenditures. For many economists, it is a sad reality that a lump sum tax is neither accepted as fair nor is executable. The last example was realized by Margaret Thatcher after the implementation of the poll tax which directly lead to her losing the elections. Using practicable types of taxes many problems arise. Beside those problems which are common for all practiced tax systems, including centralist countries with only one deciding institution, there are special taxation problems in federal systems in which all jurisdictions should have tax sources of their own. Principally, the rights of taxing certain typical tax sources are divided among the federal tiers. But the right of taxation is not a uniform one and can be distinguished into the right of legislation and the right of revenue of the whole tax amount or part of it. Further, the rights of tax administration can differ from those of legislation and those of revenues. Additionally, some economists and many politicians want to use taxes as instruments to influence private behaviour and economic activities. Income taxes therefore give after several years of validation the picture of a Swiss cheese with many, many loopholes, decreasing revenue capacities and increasing individual tax burdens.7 But before regarding the problems it is necessary to have an insight into the goals, which a division of taxing powers should follow in a federal system: 1.

7

Taxation revenues should be the most important instruments to finance public spending. They therefore have to create revenue capacitie, which

This fact is often overlooked because of the progressive income tax rates, which lead to an automatic increase of income tax revenues exceeding the growth rate of economic activity. The marginal income tax gains are therefore often used by politicians to offer new tax exemptions without being forced to discuss the use of taxpayers money for certain purposes. In truth, the tax burden of the average taxpayer increases and increases until the latter is no longer willing to pay and starts diving into the shadow economy.

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2.

3.

4.

follow the burdens of spending themselves resulting from the division of responsibilities of public services. They should be sensitive to the variation of tax rates in those cases that the jurisdictions of a certain federal tier follow diverging citizens’ preferences for public services. If an equal level of regional and local services is desired by the voters then taxes should also spread very evenly. They should also have c.p. an equal or better: a rather even revenue capacity if the production costs for public services are similar across the whole country. They should in contrast differ with respect to production cost differences. It has to be guaranteed that the taxation powers are able to fulfil the functions of ‘regional tax prices’. That means that from an ideal point of view taxes should be paid to those jurisdictions where a taxpayer – a private person as a consumer or a member of labour force or an enterprise – uses regionally and locally immobile public infrastructure capital for his or her benefit. According to an international tradition (and for good economic reasons) taxation is tied to the residence of a natural person or the location of an enterprise. But a person can work and consume in other jurisdictions than in his or her residence jurisdiction, and enterprises can produce at several locations. From this perspective it becomes clear that the procedures of corporate income tax cutting according to the amount of wages or value added at the different locations is not an act of arbitrariness rather than of a fair sharing of tax revenues among the jurisdictions which offered infrastructure capital necessary to make the enterprise profit. If the production factors labour and capital were not mobile, there would be no need of a competition among the jurisdictions of the same tier. This assumption has to be left more and more, as the discussion about the models of competing federalism shows. From the functions of ‘tax prices’ and of a fair tax competition can also be concluded that the different economic tax bases are not equally useful for all federal tiers. The lower the federal level the more functional are taxes on immobile factors, starting with land taxes. Meantime, the high international mobility of capital even sets limits for an independent national taxation of capital incomes. Many other taxes are in principle due to be used as tax sources at many federal tiers, but certain construction principles have then to be regarded. For a fair competition among jurisdictions the tax sources should be distributed in a way that the tax capacities do not spread too strongly. If a fiscally strong jurisdiction disposes e.g. about twice the tax base of a fiscally poor one, the first could c.p. easily change the ratio of public services and the necessary spending level on the one hand and/or the tax rate on the other hand to its favour because it needs a lower tax rate to have the same amount of tax revenues. High divergences in tax capacities without compensations by fiscal equalization measures would 91

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5.

6.

7.

8.

lead to an unfair tax competition and a high degree of migration which is inefficient if it is only caused by those differences of the taxation base. Furthermore it has to be guaranteed that all jurisdictions only can tax activities and assets which are in their own area. Unfair tax competition also takes place if some jurisdictions can appropriate parts of the tax base of other jurisdictions. All jurisdictions need at least two broad tax bases to be able for a fair tax competition. If the tax bases are too small the change of tax rate can again lead to inefficient migration of the mobile production factors. With regard to the absolute and relative importance of the personal income tax all over the world it should seriously be reflected if the participation in the personal income tax base – however it is constructed - should not become some sort of ‘basic right’ of all jurisdictions in federal systems. For local governments should additionally be required that aside of an access to a personal income tax base they should also have the right to levy a tax on the economic activity of local enterprises. From the point of view of a rational tax system the number of taxes should be limited. Many small taxes prevent citizens from feeling the burden of taxation and mostly increase the share of administration costs of the tax system. If tax exemptions lead to remarkable losses of tax revenue of other jurisdictions of other federal tiers they have to be avoided, at least to be refunded. This principle becomes more important if the tax exemptions of a jurisdiction at a higher federal level does not lead to even revenue losses, but concerns certain regions more than others.

Many of these principles are realised in many federal fiscal constitutions. There are typical patterns of distribution of tax sources: taxes on land and immovable property are local taxes in most federal states. Progressive income taxes sometimes are centralised to the federal tiers, in other countries several tiers participate in that important tax base. Turnover taxes with deduction of pre-taxes are located at the central government level while state governments often have the right to levy a sales tax. Special excise taxes are located at the federal or at the state level. A central taxation minimizes the administration costs because excises can easily be taxed at the producers. If the taxation technique offers reasonable possibilities to levy the taxes at the wholesale or even retail trade turnover then the taxes are suitable as tax sources of state governments. Motor vehicle taxes and taxes on land acquisition often are state taxes, inheritance taxes at the state level have started to disappear because they – as you can see in Australia and also in the relation between Austria and Germany – are sensitive for a down sizing competition. A sacrifice of tax competition has become the local trade tax, which was very common across whole Europe until about 20-25 years ago. The European employment crisis then lead to a distortion to that traditional and a bit old-fashioned tax. The poor remains of that tax on enterprise gains – instead of their value added – are now ready for a German 92

CENTRALISM AND FISCAL FEDERALISM museum after they can be deducted by 100% from the corporate and the personal income tax. If these facts did not lead to sufficient confusion the above-mentioned differences concerning legislation, revenue and administration competences would shortly have to be discussed. In central systems they necessarily fall in one hand, in not interconnected federal systems they generally do. Each jurisdiction decides about the legal tax base, the tax rate and the details of tax administration, which is executed by a tax office of the same jurisdiction. In Canada e.g., federal government has offered agreements to provincial governments to levy their income taxes in the case that they chose the same tax base as federal government. With that instrument federal government offered an incentive for a common tax base all over Canada. Most of the Provinces – except Québec – accepted the personal income tax. But concerned with the corporate income tax several agreements were recently cancelled by the rich Provinces, which can be interpreted as an indicator of a growing tax competition. Switzerland e.g. has the identical personal income tax base across the whole country and a cantonal right of determining the – in all Cantons except one progressive - tax rates and a local right to determine proportional surplus onto the cantonal tax liability (lokaler Steuerfuß)8. There are good economic reasons to limit the right of determination of the tax base: because it is more sensitive to unfair tax competition than the right to determine the tax rate(s). The smaller the country is the more intensive can the mobility of labour be assumed and the more potential and the stronger are the distorting effects of an unfair tax competition by means of the tax base. Therefore a harmonization of tax bases is needed, meanwhile not only in the national federal context, but also in the European context. If the tax bases are broad enough the right to determine the tax rates is sufficient for an efficiency increasing tax competition. In certain cases, not only the right of determination of the tax base, but also of the tax rate is centralised. Only the right of tax revenue is decentralised. Examples are the Australian Goods and Services Tax (GST) with the legislation competence at the Commonwealth level and the revenue competence at the state level, and the Austrian and the German Personal Income Tax the revenues of which are divided among federal, state and local governments. In the other direction, from below to above, European Union gets a certain share of certain tax revenues of the member states without the right to determine the tax rates.9 In Germany, a flexible revenue sharing key is used for the federal and state shares of the Value Added Tax (VAT).

8

See B. Dafflon, ‘Länderbericht Schweiz’ in H. H. von Arnim et al. (eds.): Föderalismus – Hält er noch, was er verspricht? Seine Vergangenheit, Gegenwart und Zukunft, auch im Lichte ausländischer Erfahrungen; Schriftenreihe der Hochschule Speyer Bd. 137, Speyer 2000, p. 269 et seq. 9 The negotiations about determining a common tax base and minimum tax rates for the member states results from aspects of the Common Market competition rules not for governments, but for goods and services, and are independent from the financial needs of the European Commission.

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GISELA FÄRBER The key has to be changed when the needs of the two fiscal tiers – measured by necessary expenditures of both – develop divergently. It is remarkable that this revenue sharing construction with an uniform tax legislation all over the countries is – with exception of the Australian GST – only used in the systems of administrative federalism. Without discussing all the problems connected with that construction, it should be sufficient for the moment, that this construction is very scarce and probably results from reasons of tax techniques in Australia and from the idea of the necessity of uniform tax laws across the whole country in Germany.10 If tax legislation and tax revenue competence do not coincide, then no interest stands against the determination of a special tax administration with the first two ones. Neither is it rational to divide the administration of taxes according to the revenue competences, nor are there enforcing causes to combine it with the legislation competence. So in Germany the biggest burden of tax administration lies on the states which execute many federal tax laws with common revenue competences on behalf of federal government. But until today, the Presidents of the Upper Financial Directions are federal and state civil servants at the same time. That is absolutely unique in the history of Germany. But state tax administration also prepares taxation documents for local governments. So they establish e.g. the so called uniform values for real estate which is then used by local governments to put upon the autonomous local multiplier. 2.3.3. Principles of Fiscal Equalization Fiscal equalization transfers usually are suspected to be instruments of distribution. From the theoretical point of view however, they have many functions concerning allocation. They have to repair mistakes, which remain from other previous stages of the fiscal constitution and to internalize regional spill-overs, to equalize different marginal productivities of the immobile regional infrastructure, avoidance of inefficient migrations etc.11 Regional spill-overs are regional external effects of private or public sector activities which affect citizens of other, neighbouring jurisdictions either by burdening them with external costs or by not compensating external benefits. In both 10

See the ideas of Fischer-Menshausen in the documents of the preparation of the Basic Law by the Parliamentarian Council in 1948 at the famous Herrnchiemsee Conference. Until today, the Grundgesetz contains the formulation “uniformity of the legal and economic unity” as a requirement for the centralization of state competences. The uniformity of tax laws was summarized below that label (see the documentation of H.-P. Schneider, (ed.) Das Grundgesetz: Dokumentation seiner Entstehung, Bd. 25, Articles 105 – 107 (Frankfurt 1997), Article 105, p. 6.). 11 See G. Färber, ‘Finanzverfassung, Besteuerungsrechte und Finanzausgleich’ in H. H. von Arnim; G. Färber; S. Fisch (eds.) Föderalismus – Hält er noch, was er verspricht? Seine Vergangenheit, Gegenwart und Zukunft, auch im Lichte ausländischer Erfahrungen; Schriftenreihe der Hochschule Speyer Bd. 137, Speyer 2000, p. 138 and the literature cited there.

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CENTRALISM AND FISCAL FEDERALISM cases, a government is not able to determine the optimal size of a public good. Horizontal compensation payments, or vertical equalization transfers are intended to equip the respective, e.g. local government with financial means so that it is able to offer not only schools for its own citizens but also for the pupils of the neighbouring municipalities. That way the local jurisdictions are all together able to realise economics of scale and not only the cities, which have the minimum number of inhabitants to allow themselves a high-school. But regional spill-over can result from decisions to allocate the responsibility for a certain public service at a comparably decentralized tier in cause of diverging preferences. Suppose there are two neighbouring municipalities A and B, in A the citizens have by majority a preference for a high supply of a certain public goods, in B the preference of the majority is low. The tax burdens in the two municipalities follow the preferences of the decisive majority. If no consumer can be excluded from the consumption of the public good – which is a typical quality of public goods – the defeated minority of B walks or drives to A and consumes in the role of free riders without paying taxes. Citizens from the majority of A could now migrate to B to get the position of free-riders until they build together with the former residents of B a majority in favour of the high provision of the public goods which leads to an increase of tax burdens also in B. Tiebout called that phenomenon “voting by feet”’.12 If the economic world only existed of a very small number of public goods the internalization mechanism could be accepted to be efficient. But in reality, there are many public services and also private goods and different equipment with immobile natural equipments of a location, there are costs of migration, which mostly lead to the conclusion that it is more efficient to construct internalization mechanisms by fiscal equalization instead of migration or instead of a centralization of the responsibilities. It is furthermore often forgotten that the correction of ‘mistakes’ concerning the second and the third stage of a fiscal constitution, the principles of cost carrying and the distribution of taxation bases, cover a bigger share of the equalization transfers than the proper internalization functions. Here particularly those distortions have to be respected which result from regulations of other higher federal tiers. It is obvious that the systems of administrative federalism show with this respect a higher degree of equalization than the not interconnected ones. And if the taxation competences are not distributed in a way that they can fulfil the above mentioned functions a financial equalization scheme can help to make a fair tax competition workable which is more fundamental for efficiency of the total government sector, for the whole fiscal federalism than some transfer or compensation payments. It should however not be neglected that fiscal equalization transfers often are used for distribution goals. They can be proved if a financial constitution requires a minimum or even an equal equipment with public goods for all jurisdictions of a fiscal tier. Two aspects have to be considered with regard to distribution policies by 12

Vgl. C. Tiebout, ‘A Pure Theory of Public Expenditures’ in Journal of Political Economy (1956), p. 416 et seq.

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GISELA FÄRBER means of fiscal equalization: If a central tier legitimately decides to follow the goal of a minimum level of public goods across e.g. the whole country, it is the better, it is the more efficient solution to build up equalization transfers than to centralize the responsibilities for public goods supply which are necessary for this goal; the decentralized process of uncovering special regional and local preferences which concerns not only the total amount, but also the combination and the qualities of public goods supply, should better be kept intact. And furthermore, in a market economy goals of direct or indirect income distribution are also permitted, are sometimes even necessary and unavoidable to fulfil the allocation goals and are – if certain construction principles are regarded – up to a certain degree of distribution which is not hostile against economic welfare optimization. The biggest need of correction of the financial equipment of federal jurisdictions results from deficiencies of the distribution of taxation competences. It was already noted that the ideal tax under economic welfare aspects is not practicable. All other – practiced – tax bases however show certain, partly huge problems which have to be regarded under their vertical effects as sources of taxation of the different federal tiers and under their horizontal effects among the jurisdictions of the same tier: •

•

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In general, the taxation competences of each federal tier should be sufficient to cover the budgetary expenditures which result from the production or provision of public services of which the jurisdictions are responsible. But it can happen that a certain tax bas, which might be almost ideal as a source of finance for a special federal tier with concern to its features is too small to cover the financial needs of the tier. This is e.g. to be stated for almost all countries as far as the taxes on real assets as the only source of local taxation is concerned in whatever form land can be taxed: rates, property taxes, taxes on standard values of real estate like they are practiced in Germany – these taxes are too small for financing all local services. In Australia, the only country where the rates seem to be sufficient, a very low level of local responsibilities has to be stated. In the United States however, the strong tensions of the property tax rates lead to the strikes of e.g. the Californian taxpayers in 1977, to a limitation of property tax rates and tax bases by the famous Proposition 13, but later to severe financial problems particularly of the counties and school districts in the late 1980s. If the tax base of jurisdiction is too small and no financial grants are afforded either the amount of the jurisdictions public services is too small or the tax rates become so high that the distortions in cause of taxation leads to high welfare losses for the whole economy. In this case, other taxation rights have to be conceded or vertical grants from upper tiers have to equalize the deficient tax base of a fiscal tier. Similar results provide taxation competences, which provide highly spreading tax revenues among the jurisdictions of the same fiscal tier. If

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•

•

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jurisdiction A needs a tax rate twice as high to have the same tax revenue (per inhabitant) as jurisdiction B there is no chance to offer a similar level of public services for the same or comparable tax price. Consumers, labour force and capital then start to migrate only in cause of the uneven financial equipment of the jurisdictions. This federal competition however does not increase the economic welfare of the whole economy. The effects become stronger, if the jurisdictions have to apply a common tax law, the same tax rates, as this is practiced in Germany and in Austria.13 In this case financial equalization grants – for the moment either vertical or horizontal ones – prevent an inefficient migration and increase the total economic welfare. If the tax bases of the jurisdictions of the same federal tier strongly diverge in cause of a country-wide and centrally regulated redistribution by taxation means – progressive income tax rates tend to fall under this case - or in cause of an uneven regional distribution of special tax exemptions (which cannot be justified by the systematic rules of taxation, but result from goals of economic or social interventionism) the differences have to be compensated. Horizontal equalization transfers can be accepted and are in reality, the smaller the divergences of the tax bases are and the more centrally regulated, the more uniform the tax laws are in a country. As most tax bases differ nearly with the economic capacity of a jurisdiction – because taxation always is a governmental ‘grip’ onto a certain part of the economic activity or circulation within a jurisdiction and has to follow the principles of a taxpayer’s ability to pay – the nearly economic homogeneity is condition for a horizontal fiscal equalization among jurisdiction. High divergences undermine the willingness of sub-central governments to pay for their poor ‘neighbours’. High divergences of the regional and local economic capacity make the instrument of vertical equalization grants preferable. The grants are then calculated – mostly or ideally by a formula – to equalize the tax capacity of the jurisdictions. Vertical grants can furthermore be better used for all the cases in which not only tax divergences have to be equalized, but also differences of the so called ‘public needs’ of jurisdictions. These can result – apart from the different preferences for public goods, which are not relevant for fiscal equalization! – from regionally diverging necessities of public intervention – e.g. in case of unavoidable economic structural change as could be still observed in East Germany and all transformation countries – and diverging production costs for public services for its part resulting from natural conditions and regional factor price differences.

13

See R. Müller, Horizontal und vertikale Transfers zur Durchsetzung eines horizontalen Finanzausgleichs; Frankfurt/M 1995, p. 149 et seq.

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GISELA FÄRBER Asymmetrical production functions in case of increase and of decrease of the number of regional/local consumers respectively inhabitants are a third case calling for equalization. The latter is probably highly relevant for fiscal equalization, but until now nowhere practiced, it is only seriously discussed in Australia. The shrinking and aging populations will bring the discussion to all industrial countries. The high number of cases for general – horizontal or vertical – fiscal equalization grants might be astonishing. So far the intervention causes for special purpose or matched grants have not been discussed. Although they can also be used as instruments, which have a general function of intergovernmental financial relations, their function as a ‘golden rein’ is so dominant that the inclusion would blast the frame of this paper. To summarize the arguments: Not only distributional, but particularly arguments in favour of an optimal allocation of resources in the public sector as well in the whole economy between private and public sector justify financial equalization grants. In practice, it might be difficult to separate the various causes and their instrumental constructions among the many rules, which are all occupied with the distribution of ‘public money’. Obviously, among all good reasons there are always mixed up distributional interests of the negotiating parties in a federal system. As a clear result should finally be noted that the more need for vertical equalization grants exists in a concrete federally constituted country, the higher must be the degree of centralization of the tax system, precisely: the revenue competence. Otherwise the upper tiers do not dispose of the financial means necessary to spend vertical equalization grants. 2.4. How Much Centralization, Respectively, Decentralization, Autonomy and Solidarity is Needed in a Federal Constitution? After all the details finally the question comes up how to find the optimal balance between centralization and decentralization, between autonomy and – I want to call it – solidarity in a federal system. The mainstream of the 1960s and 1970s followed the idea of a rational government sector by using nearly perfect instruments like cost-benefit-analysis, PPBS and many more. Under that label it is not necessary to differentiate among the ideal levels of public decision-making, because there is but one rational solution to solve the problems of society. And the governments sector is big, powerful and costly under this regime. The more recent ideas tend to emphasize autonomy and decentralization instead because one enormous advantage of decentralization lies in the stronger political control. Political decision making processes happen close to the living sphere of the citizens and they are able to articulate their preferences for local and regional public goods directly. The growing importance of instruments of direct democracy like referenda also shows that many citizens want more decentralization after a period of a costly and more technical centralised government. 98

CENTRALISM AND FISCAL FEDERALISM Intergovernmental financial relations must follow this development. But in the case that responsibilities for public goods are re-decentralized there is no guarantee that e.g. the regional spread of tax capacities also decreases. That means that a decentralization of responsibilities for public services can – not must – lead to in increasing centralization of tax revenues because the necessary amount of vertical equalization transfers grows. This result seems almost to be a paradox. It is of course not. It shows however that a federal constitution always has to balance autonomy on the one hand and solidarity or equalization on the other hand. Otherwise it would give up its advantages against centralistic constitutions, which mainly lie in the better consideration of citizens’ preferences and a more intense political control. 3. RECENT DEVELOPMENTS IN EMPIRICAL CENTRALISM AND FISCAL FEDERALISM Before that background of a principal tension between autonomy and solidarity in federal constitutions, the final chapter of this paper regards some developments in centralist and federalist countries. The question is no longer that of superiority of one ideal system to the other, but of their ability to provide necessary reforms and their flexibility to react to future challenges. Due to their fundamental constructions the systems are supposed to react differently, but they have also the chance to undertake reforms and converge to each other. Four different, but interdependent developments can be distinguished: •

•

World wide competition for capital and labour under the conditions of increasing factor and consumers’ mobility: All federal and all national fiscal constitutions can no longer be isolated against foreign users of national and regional infrastructure. Globalisation has lead to an increasing mobility not only of financial capital and labour force and consumers. Enterprises have started to exploit intensively national and regional divergences of production costs. The increase of inter- and intra-industry trade as well as of direct investment is the direct result of these developments. The low transportation costs not covering the social costs for the environment subsidize the process. The so-called new economy and the decrease of information time and costs have provided further independence of production places from consumption places. This process has put the previously nationally closed tax system under pressure. At least with concern to certain corporate income taxes the international competition has increased to a race not “to the bottom”, but to a lower level of enterprise taxation. National tax bases are for all those taxes under competition where the taxation base is comparably mobile which are enterprise profits, interest and other capital incomes and highly skilled labour force incomes. That means that centralist and federal countries both are set under an international tax competition 99

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which overlies many other common necessities of reform e.g. due to the aging population. Most of the countries have started more or less intense reforms. The reforms have in common to ask for the necessary harmonization of tax systems or tax bases to avoid an inefficient tax competition. It is remarkable that this discussion can also be observed in Switzerland with regard to the cantonal taxation rights and a resulting need of fiscal equalization. Process of regionalization and federalization: Since the late 1970s and the early 1980s, at least in Europe a continuing process of regionalization and federalization can be observed. The centralist countries have started reforms to give more autonomous rights to the regional level. Although the processes and constructions differ slightly because of the national and cultural divergences, each member state of the European Community has followed that development.14 Remarkably the centralist countries only have undertaken a regionalization, and not a federalization. Regions in Italy and France e.g. have – compared with states or provinces in federal states - very limited responsibilities and are with regard to financial concerns treated like typical local jurisdictions in federal systems. The regionalization process was closely connected with an increase of regional cultural identities. The recent discussions about the legal status of Corsica is almost unbelievable with regard to former national positions of the French central government. The Italian debate about the establishment of an independent Padania was observed with interest by experts of federalism as was the break down of the former federal state Yugoslavia observed with fright. All in common are two dependent developments: The importance of regional ethnical identities is increasing without that – this is my hypothesis – the respective national systems were able to react flexibly upon the political challenges or even had the political will to do so. And regional cultural identities have lead to a general loss of importance of national frontiers and national communities because regions find more common interests with the neighbouring regions across the national frontiers than with far distanced regions in the same national country. The actual conference is an excellent example for the hypothesis. Fiscal equalization under pressure: The national intergovernmental relations have come under political pressure. Although centralist countries have by definition no financial equalization system in the federal sense they have systems and rules how to distribute the national tax revenues, which are uniformly collected across the whole country

See e.g. the contributions of the conference reader G. Färber and M. Forsysth (eds.): The Regions – Factors of Integration or Disintegration in Europe? Föderalismus-Studien Bd. 8, hrsg. v. Hans-Peter Schneider, Baden-Baden 1996.

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under regional aspects. Furthermore, also centralist states have established local governments which traditionally have certain autonomous competences of self-determination of local public goods and certain autonomous taxation rights. Local governments were traditionally also additionally financed by a fiscal equalization system which included either local financial needs and local fiscal capacities. Centralist and federalist countries have in common that the regional distribution and re-distribution of tax revenues has come under suspicion. The interregional flow of purchasing power by central taxation and central public spending decisions is not yet accepted because the rich regions want to use it for their proper economic development and the poor ones are afraid of losing further locational competitiveness by getting rid of public resources. A consensus about an accepted relation between competition and solidarity is not in sight. Supra-national, national and regional cross-border fiscal ‘federalism’: Instead of national solidarity closer relations come up among neighbouring jurisdictions for those regards in which the new partners suppose to be stronger together. Not only were competences concerning a Common European foreign and security policy delegated to the supra-national tier by the European member-states. Also in the national context, more trans-border economic regions are established. Some German states negotiate common administrative bodies. The economic regions of the metropolitan areas have expanded across all state and local borders already for a long time. The explicit establishment of special types of jurisdictions with particularly economic planning competences has begun almost ten years ago. And even local governments have started to offer common industrial areas to attract bigger enterprises by preventing an unfruitful local competition and to realise economics of scale by common institutions. If these new special jurisdictions and pre-jurisdictions need financial means and do not get sufficient grants from public budgets of the upper tiers they levy contributions from their members which often are calculated according to the fiscal capacity of the member jurisdictions. This can be regarded as a starting point of some sort of fiscal equalization system.

The closer trans-border relations of European jurisdictions of whatever federal tier show common interests and simple approaches of institution building. This development had to be expected because positive common interests and cooperation gains easily lead to an agreement. All partners win. Economists call it a win-winsituation. Unsolved are many situations with a winning and a losing party which mostly can also be analysed as cases of external costs crossing regional and national borders. The nuclear plant Temelin just after the Austrian frontier in Slovakia and the expected costs of the additional migration after the Eastern enlargement of the European Union are only two examples for contradictory negotiation situations. The 101

GISELA FÄRBER problems to find a solution increase by the fact that the partners are not equal with regard to the economic capacities and do therefore not have common or equal preferences of the citizens. The logic of fiscal federalism indicates that establishing special inter- or trans-national financial relations could help to find agreements with situations of net gains and could smooth the economic development of the future European member-states on their way to integration. The example of the Common European Agricultural Policy however shows that not special subsidies open the way to win-win- or net-gain-situations. The profiting special rent-seekers can scarcely be ‘bought out’ or only at extremely high budgetary costs. Fiscal federalism win-win or net-win-situations can however be reached by general fiscal transfers or compensation rules and special purpose transnational cooperation agreements. But they demand a sufficient autonomy of all participating jurisdictions. 4. SUMMARY AND CONCLUSION This paper has developed the fundamental construction principles of fiscal federalism starting with the differences to the fiscal constitutions of centralist countries. The different stages of division of responsibilities, the rules of distribution of costs for the production of public services among the different federal levels, the principles of determination of taxation rights and the goals and equalization necessities for a more efficient allocation of resources than in centralist countries have been shown. Finally, the international pressure of globalization has brought up common challenges of countries of both basic types which break up the national frontiers and solidarities and establish new relations among neighbouring jurisdictions across national borders where in doubt the grown cultural identities are closer than among far distant regions within national frontiers. The construction principles of fiscal federalism offer broad chances to establish flexible instruments and new institutions for the new relations. May be the 21st century will become – as my colleague Hans-Peter Schneider has formulated – the ‘century of federalism’. This might also depend on the successful development of the principles and instruments of fiscal federalism not only for the national intergovernmental relations, but also for international relations and governance. But before we can start doing so the ugly suspicion and bad reputation that fiscal equalization was always an instrument of the economic distribution has to be abolished. It should primarily stand and is in many parts an instrument for a better, a more efficient allocation of public resources.

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SOCIAL STRUCTURE, SOCIAL CAPITAL AND INSTITUTIONAL AGREEMENT: THE TRENTINO-ALTO ADIGE MODEL Antonio M. Chiesi1 1. INTRODUCTION This contribution will discuss the role of social capital in the development of the Trentino-Alto Adige region, and in the management of political and administrative autonomy. This is a tentative paper for at least two important reasons: a) the concept of social capital, in spite of its appeal among social scientists and also intellectuals in general, is still too vague and theoretically unstable, so that its application implies a number of difficulties both conceptual and empirical; b) an extensive analysis of the amount and diffusion of social capital among the inhabitants of the Trentino-Alto Adige region has not been accomplished yet. Nevertheless we think that a preliminary discussion of this concept can be of interest because it has been related to the quality of the institutional performance at a local level, not only in Italy, but also in other countries (Putnam 1993). Although empirical studies on the amount and role played by social capital still have to be conducted, it is however possible to develop some preliminary considerations. The first paragraph of the paper will review the different meanings that have been given to the term ‘social capital’, through a brief summary of the theoretical debate and the discussion on the semantic boundaries with other kinds of capital (i.e. economic and cultural) and with other kinds of related concepts. We then discuss what kind of social capital is useful to analyse the specific development of the Trentino-Alto Adige model and what technical tools are more useful to identify and measure social capital. We shall conclude the paper by putting foreword some hypothesis on the role of social capital in the development of the region and confronting a few problems in the application of the concept of social capital in the Balkan area. 2. WHAT IS SOCIAL CAPITAL As it often happens with concepts ‘in fashion’ the literature has sometimes forgotten that concepts very similar to that of ‘social capital’ had already been proposed by the sociological tradition. In this respect at least four fathers of classical sociology have to be mentioned. Tocqueville was the first to point out the importance of associational ties in getting and motivating co-operation. Durkheim has identified the pre-contractual bases of exchange, i.e. shared norms, values and social 1

University of Trento, Department of Sociology and Social Research.

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ANTONIO M. CHIESI recognition that are conditions for exchange, as well as a very general mechanism of social cohesion that he calls solidarity. The concept of social closure in Weber has to do with the strategies of inclusion and exclusion as well as of reciprocal recognition, which has been recently attributed to social capital by some authors. Simmel’s concepts of social circle and intersection of social circles seem immediately related to the structural approach to social capital, that has been developed during the last ten years by authors like Burt (1992), Coleman (1990) and Lin (2000). Both Weber and Simmel point out the centrality of the concept of social relation in sociology. While the sociological tradition gives ideas pertaining both to the micro and to the macro level, the recent concept of social capital has been related to two different theoretical approaches. The micro approach, which is rooted in rational choice theory (Coleman 1990) and social exchange theory (Homans 1958), permits to conceive social capital as an appropriable resource. In the light of social exchange theory it is possible to distinguish those relations that entail social capital and are based on reputation (Lin 2000), from those that entail money and are anonymous (economic capital), as well as from those that entail power and influence and are typical of hierarchical organisations. The macro approach is rooted in the classical functional theory and conceives social capital as part of a shared culture. Applied to the economic and political performance of a community (Putnam 1993) or an entire society (Fukuyama 1995), this approach has two serious drawbacks: it tends to origin tautological explanations and identifies social capital as something which is intrinsically good.2 Unhappily these two approaches re-propose the traditional contrast between micro and macro sociology. Social capital has often been defined as an asset of social relations (Bourdieu 1980). This is another very general definition that cannot distinguish any kind of specificity: society itself is a system of relations. Social capital has also been defined as a resource, like the other two types of capital: economic and cultural. If we are consequent to the implications of this definition we should identify strategies of capital accumulation, both individual and collective, and also processes of social capital destruction, which could be thought, for example as result of interpersonal conflicts by which actors lose the likelihood to use personal ties.3 Moreover, if social capital is a kind of capital tout court, relations

2 Fukuyama, for example, defines social capital as the propensity to cooperate and to share mutual trust, which is fed by a culture of cooperation. 3 Family disruption is the most important example of social capital destruction, as it entails not only that conjugal relations are cut but also indirect relations with the partner’s relatives. The expulsion from an association or guild is another example, which gives evidence that the access of social capital can be used as a mechanism of social control, especially when collective goods are implied.

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SOCIAL STRUCTURE, SOCIAL CAPITAL AND INSTITUTIONAL AGREEMENT: THE TRENTINO-ALTO ADIGE MODEL among the three different types of capital should be studied as well as mechanisms of reciprocal trade off.4 If we put together the different definitions proposed by the available literature, we can identify at least three dimensions of social capital: a) The structural dimension, which pertains to the form of the relational structure; b) The content dimension, which pertains to what flows inside the relational structure; c) The idea of social capital as collective good, more specifically: club goods – those goods that are possessed by a group and from which outsiders are excluded – and/or public goods, which are available to everyone, no matter if the subject has contributed to their production. Table 1 − Different dimensions of social capital according to available literature Micro level

Meso level

Macro level

Structural The pattern of steady relations of ego with others dimension: Content dimension: Recognition (Coleman 1990, Lin 2000), cooperation Personal trust (Mutti 1999), solidarity, loyalty Reputation (Lin 2000) Access to sensible information Club good: Social identity and belonging Inclusion of insiders in a common social circle and exclusion of outsiders Organisations (Coleman 1990) Public good: Civicness (Putnam 1993), systemic trust, shared norms and values (Fukuyama 1995), ‘rules of the game’

While the two first dimensions pertain to the micro level, the third operates at meso and macro levels. We can develop further these dimensions using table 1. Let’s have a look at the first row of the scheme. While there is consent on the fact that the relevant relation must have stability over time – i.e. it is part of a structure – otherwise the interaction cannot be relevant for the formation of social capital, the debate is open about the nature of relationship. Some scholars prefer not to specify and consider any kind of stable social relation as potentially relevant for one’s social capital (Coleman 1990, Piselli 1999). On the contrary others argue that social capital is not a social relation at large, but a specific one. The argument in 4

We know from the classical studies by Blau and Duncan (1967) that human capital and social origin are significantly correlated and that the acquisition of education needs to be funded, while educated people earn higher incomes.

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ANTONIO M. CHIESI favour of this position is directly drawn from exchange theory that allows one to distinguish between economic transaction, power relation and social exchange (Lin 2000, La Valle 2000). Economic transaction is based on bounded rationality and profit-seeking motivations. Power relation is based on threat or recognised authority and is asymmetric. Social exchange is based on reciprocal recognition, and yields trust and/or loyalty.5 If we conceive social capital as a resource typical of social exchange, we have to conclude that: 1. 2.

not every social relation implies social capital; the relational dimension of social capital implies a specific content of the relation.

In this way we are drawn to the second row of the scheme. Recognition, cooperation, trust, reputation, information, loyalty are the more quoted concepts. Their meaning is very close in some cases (recognition-reputation; trust-loyalty), or one concept can be seen as the effect of another (trust is a condition of co-operation, trust demands loyalty). Therefore, we can try to simplify the nomenclature putting into the background those concepts that are consequences of others and choosing only one word among different synonymous. As far as information is concerned, it is important to stress the fact that, again, it is not a matter of any kind of information. In the society of information people have potentially the same opportunity to get information in anonymous ways through mass media. The information relevant for the formation of social capital are those circulating through personal communication where the reputation of the sender is brought into play with the receiver. An important feature of these concepts is that they refer to mechanisms that play both at micro and at macro levels.6 This double level brings us to the third and fourth rows of the scheme. The problem of identifying social capital at the associational level and at the system level has been stated mainly at the macro level of analysis. It has been stressed that the micro-macro link could consist of unanticipated consequences or by-products of purposive actions (Bagnasco 1999, Trigilia 1999). In short, the problem of the relation between the two levels of social capital incorporates the still open problem of explaining collective phenomena starting from methodological individualism, to which exchange theory pertains. For this reason social capital at 5

Of course these three kinds of relations are ideal typical models. The role of mutual recognition and trust in economic exchange is stressed by the transaction cost theory and by the institutional approach in economics, while in organisational hierarchies power relations are mediated by economic exchanges through salaries. 6 A good example is trust that can be personal (to trust someone belonging to one’s personal network) and systemic (to trust in the value of a currency or in the media). As we shall see later, there are mechanisms of reciprocal strengthening between social capital at macro and micro levels.

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SOCIAL STRUCTURE, SOCIAL CAPITAL AND INSTITUTIONAL AGREEMENT: THE TRENTINO-ALTO ADIGE MODEL the macro level has been identified as an institution (shared norms), whose origin is not explained, but whose function is clear.7 In any case, when applied at the macro level, the concept of social capital takes the form of a collective good and has been mainly identified at the level of shared culture, therefore as a feature of the system as such. In the scheme I have identified three levels: micro, meso and macro (Smelser 1995), because I doubt that social capital can work in the same way at meso and macro levels. In fact we have to take into account the fact that there are two kinds of collective goods: public goods and club goods. They work very differently. While public goods are at everyones disposal, club goods are a common property of a group. Each member has a direct interest to maximise the exploitation of it and to minimise the cost of its production, while the insiders are jointly interested to protect it from outsiders. The specificity of this meso level has not been recognised enough by the current literature and put together with the macro level. In my opinion this distinction is useful in separating different strategies of the actors and the different nature of the outcome of their combined actions. In particular it is easier for rational actors to mobilise collectively in defence of a club good when it is threatened by outsiders’ claims, while the outcome of the prisoner’s dilemma prevents the same mobilisation in defence of public goods. In short, social capital as club good allows one to highlight its dark side. Social capital has been seen as a virtuous mechanism capable of many good things for human beings such as solidarity at the micro level and economic development at the macro level. In this line public policies that affect the growth of social capital have been foreseen, especially by economists. More recently some important negative effects of social capital have been identified because of its particularistic and collusive functioning. Portes (1998) for instance identifies four negative consequences of social capital: encouragement of members’ claims, excessive social control on members, levelling down, exclusion of outsiders. If we distinguish economic exchange and power relations from social capital, the idea of the latter is mainly related to symmetrical informal relations, which are mutual by definition. Nevertheless some studies have shown that the instrumental effectiveness of a personal relation is higher if alter has a higher social status than ego. If asymmetrical relations are concerned, the analytical problem of distinguishing social capital from power and influence relations can be confronted taking into account that exchanges of reciprocal reputation usually occur in hierarchies and function as mechanisms of motivating people beyond their formal duties. In this light an employee can get informal help from his boss, who will exert the influence of his post in favour of him, in exchange for personal loyalty in the office.

7

A clear example of this lack of explicative power is Putnam’s explanation of ‘civicness’ in Italian regions: civicness is present because it has been present since the Middle Age.

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ANTONIO M. CHIESI This use of social capital is very similar to clientelism and – together with strategies of social closure, typical of club goods – it works like a mechanism that generates social inequality (Bourdieu 1986). The above mentioned example is also consistent with the idea that social capital is a by-product, sometimes unintentional, of social or economic activities. The production (destruction) of social capital has therefore to be seen as a process. Network analysis has stressed the importance of considering social relations as multiplex ties, i. e. as relations that convey different functions and carry different meanings for the actors involved. We know that a social tie, which has been created mainly for economic reasons, often needs fiduciary premises (especially in case of information asymmetry and of incomplete contracts) and can also supply the condition for the creation of other types of relations (information exchanges, social recognition, increased reputation, reciprocal liking, and so on). The same holds true for power or hierarchical relations that are mainly based on influence and dependence, but can convey other types of relations as well. Of course, the transformation of a simple tie in multiple tie needs time, that’s the reason why social capital implies, in any case, ‘steady’ relation. The problem of the analytical relationship between the pattern of relations and the content of relations is clearly evidenced in the case of mutual trust formation. Is trust a consequence of repeated exchanges (repeated games) or it is a pre-condition for them (a non rational attitude which is functional to the creation of networks)? If we assume that social capital is a resource, associations are an environment in which this kind of resource can be produced and exchanged and of which not only single actors can benefit through personal ties but the group as such, and from which outsiders can be excluded. To identify the association – or even the organisation as Coleman proposes (1990) – as social capital is perhaps a way of confusing the resource with a specific institutional mechanism that allocates it. Looking at social capital formation as a process has also the advantage of identifying mechanisms that link together the three levels: micro, meso and macro. In scheme n.1, which tries to sum up some ideas of the available literature, it is taken into account that actors are in a better position to use and enlarge their personal networks if they live in a cultural environment that supports stability of social relations and mutual sharing of trust and reputation. Trust and reputation are not simple cultural features, which are handed down to posterity, but rather the outcome of actors’ strategies at the micro level. In turn reputation and trust can be played at all three levels as well. At the individual level they increase one’s personal social capital. At the group level (meso level) they can be spent as a club good, they can play a role in social closure strategies, but can also be spoiled by somebody’s moral hazard. If there are favourable institutional conditions – which cannot be identified with social capital as such – the production of reputation at micro level can in turn strengthen the macro-cultural prerequisites that make social relations stable.

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SOCIAL STRUCTURE, SOCIAL CAPITAL AND INSTITUTIONAL AGREEMENT: THE TRENTINO-ALTO ADIGE MODEL Scheme 1 – Social capital as a process

Finally, it is interesting to think of reputation and trust in terms of a trade off between the two levels of public goods and of club goods. This trade off depends on the specific social and economic context. If systemic trust is widespread perhaps actors needn’t build exclusive social relations, while its lack can induce them to react to systemic mistrust through the organisation of social circles where mutual social recognition and social control can give assurance both among insiders and to outsiders. 3. SOCIAL CAPITAL, ECONOMIC DEVELOPMENT AND SOCIAL COHESION. If we try to apply the three levels of social capital to the region under study, we can draw some conclusions from the use of available data and develop some hypothesis where evidence is not yet available because of a lack of specific research. This is particularly true at the micro level. As we have sketched before, at the macro level, social capital is a public good that allows social and economic co-operation. Indicators of a widespread presence of social capital in the line suggested by Putnam are the high rate of voluntary association among the population and the consent given to the local administrators and politicians. Other indicators of systemic trust are shown in table 2.

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ANTONIO M. CHIESI Table 2 – Some indicators of systemic trust in 1999 in the provinces of Trento and Bolzano Indicators: Trento Bolzano Italy Voluntary associations per 100.000 inhabitants 46.44 54.91 35.97 Car thefts per 100.000 inhabitants 66.07 51.67 510.97 Credits under protest per inhabitant in lire 14,491 14,120 48,212 Bankruptcies per 1.000 firms 17.67 12.32 35.85 Civil trials before the Courts per 1.000 inhabitants 11.44 20.21 45.87 Source: Sole 24 Ore 11 December 2000, from different official statistics, and local opinion polls. A social environment like this allows a steady economic development and a high level of per capita income, but of course in this virtuous process it is difficult to state what is the independent and the dependent variable concerning the relation between social environment and economic performance.8 One is usually backed by the other in a reciprocal relation. Moreover, a routed practice of co-operation and solidarity, in the light of a widely shared catholic tradition, has fostered a vision of social capitalism that is different from the individualistic approach, which is more common in the rest of north-eastern Italian economic miracle. At the meso level not only are associations widespread in general, but especially those related to non-profit. This means that the outcome of associative activity is more likely to be public goods instead of club goods and inclusion and participation mechanisms prevail on social closure. At the micro level it is more difficult to say something because of a complete lack of information on the quality and frequency of interpersonal relations and personal network structures. Nevertheless we shall try to make conjectures through indirect indicators related specifically to the ethnic cohabitation of two linguistic groups. We can suppose that personal social networks are structured through ethnic cleavages. Although the available literature is mainly concerning the States and little is known at the European level, research on social capital has pointed out that the structure of personal networks of acquaintance and mutual help is heavily affected by ethnic cleavages, whenever social identity of individuals is built around the coexistence of different ethnic groups, as typical of most American cities. This ethnic structure of social relations, which originated by spontaneous choices (from endogamous spouse, to friendship, to next door neighbours) is at the origin of a split of personal relations into bipartite networks in which a high intra-group density of 8

The per capita value added expected in the province of Bolzano is 46,8 million lire in 2000, while in the province of Trento is 44,0, compared with a country average of 36,9. The unemployment rate in the province of Trento has been 4.4 per cent in 1999 (Source: Agenzia del lavoro della Provincia Autonoma di Trento, 2000). According to Prometeia Agency (2000), the expected unemployment rate in 2000 is 3.3 per cent in Trento and 1.8 in Bolzano.

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SOCIAL STRUCTURE, SOCIAL CAPITAL AND INSTITUTIONAL AGREEMENT: THE TRENTINO-ALTO ADIGE MODEL culturally homogeneous insiders is confronted with a low density of relations between the groups (i.e. lack of inter ethnic personal relations). In this way personal trust tends to originate inside the group, while prejudice between the groups is fed by social distance, which in turn is increased by the lack of contact. This mechanism is not necessarily a hindrance to economic development and co-operation. A consolidated literature about ethnic entrepreneurship (Light and Karageorgis 1984) has stressed the fact that ethnic homogeneous immigrants find an advantage in solidarity chains in order to establish new economic activities. Moreover the identification of a specific economic activity with an ethnic minority gives a sort of informal brand on which good reputation among consumers and customers can be established. In turn, the fact that good reputation is shared among entrepreneurs belonging to a specific ethnic group has fostered activities of self organisation that sometimes control the quality of the output, furnish collateral securities, lend money, help to meet demand and supply on the labour market. In this way social capital takes the form of social closure at the meso level. 4. SOCIAL CAPITAL AT DIFFERENT LEVELS AND THE PROBLEM OF INSTITUTIONAL AGREEMENT We shall conclude the paper by putting foreword some hypotheses on the role of social capital in the development of the region and confronting some problems in the application of the concept of social capital in the Balkan area. In the case of Trentino Alto Adige the important difference between the two ethnic groups is language. Their specific history and tradition is routed into linguistic difference, different national identity and references, while they have religion in common. In spite of a period of conflict and violence during the 1960s and mutual distrust that since the end of the Second World War had conducted the case before the United Nations, this has given opportunities to reach institutional agreements that would have been more difficult if religion was also different. In the case of the Balkan area, it is evident that after the disruption of the former Yugoslavia, there has been a destruction of social capital. The feedback mechanisms that interplay at macro and micro levels (see scheme n.1) have reduced public trust, both at political and economic level. The consequent lack of systemic trust and of a national reference has perhaps modified the structure of interpersonal relations inducing individuals to rely mainly on ethnic relations, which are mechanisms of social closure. As it is usually difficult to reverse the mechanism of the relation between macro and micro levels, the international peace keeping intervention has been an exogenous factor at work for the recovery of systemic trust at institutional level.

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ANTONIO M. CHIESI 4. REFERENCES Bagnasco, A. 1999, ‘Teoria del capitale sociale e political economy comparata’, in Stato e mercato, n.57, pp.351−372. Blau, P. M., Duncan, O. D., The American Occupational Structure (New York: Wiley, 1967). Bourdieu, P. 1980, ‘Le capital social. Notes provisoires’, in Actes de la Recherche en Sciences Sociales, 1980, n. 32, pp. 2-3. Burt, R., Structural Holes: The Social Structure of Competition (Cambridge Mass.: Harvard University Press, 1992) Coleman, J., Foundations of Social Theory (Cambridge: Harvard Univ. Press., 1990) Fukujama, F., Trust: the Social Virtues and the Creation of Prosperity (New York: The Free Press, 1995). Homans, G. C., ‘Social Behavior as Exchange’ in American Journal of Sociology, 1958, n. 63, pp. 597–606. La Valle, D. Il capitale sociale nella teoria dello scambio, paper presented at the International Workshop on Social Capital, Trento, 2000, October, 19–20. Lin, N., ‘Reputation and Social capital: the relational Basis of Social Exchange’ in Nan Lin., Social Capital: A Theory of Social Structure and Action (Cambridge: CUP, 2001). Light, Y., and Karageorgis, S., ‘Ethnic Economy’ in N. Smelser and R. Swedberg, (eds.), Handbook of Economic Sociology (New York: Princeton Univ. Press, 1994). Piselli, F., ‘Capitale Sociale: un Concetto Situazionale e Dinamico’, in Stato e Mercato, 1999, n. 57, pp. 395–417. Portes, A., ‘Social Capital: its Origins and Applications in Modern Sociology’ in Annual Review of Sociology, 1998, n. 22, pp. 1–24. Putnam, R. D., Making Democracy Work: Civic Traditions in Modern Italy, (Princeton: Prienceton Univ. Press, 1993) Smelser, N., Problematics of Sociology. The Georg Simmel Lectures (Berkeley: University of California Press, 1995). ‘The Forms of Capital’, pp. 241–258 in J. G. Richardson, ed., Handbook of Theory and Research for the Sociology of Education, (Westport: Greenwood Press, 1986). Trigilia, C., ‘Capitale sociale e sviluppo locale’ in Stato e Mercato, 1999, n. 57.

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LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE: BRINGING THE LOCAL STATE BACK IN Milford Bateman1 1. INTRODUCTION The disintegration of the former Yugoslavia at the end of the 1980s was the beginning of a major humanitarian tragedy. It very quickly led to a civil war, economic collapse, social upheaval, and the creation of major refugee populations. The bitter civil war that began in 1992 was the worst to be seen in Europe since the Second World War. For several agonising years the conflict raged across Bosnia and parts of Croatia, until finally a conclusion was reached in late 1995 with the signing of the Dayton Peace Agreement. Tragically, further conflict was still to come just a few years later with the NATO bombardment of the Federal Republic of Yugoslavia in early 1999. This brought a further and quite devastating round of physical, economic and social destruction to Serbia and to the wider region. Moreover, unfortunately, no definitive settlement appears to have been achieved in many of these disputes: on the contrary, the region today remains poised for further change, possibly violent, on account of the still powerful nationalist and separatist currents that exist. The violent demise of the former Yugoslavia and its descent into inter-ethnic confrontation was an event that caught many by surprise. After all, the former Yugoslavia was well known as the most liberal, tolerant and economically advanced of all the communist states. Its pioneering system of decentralised government, indicative planning and worker self-management was responsible for the East Asian ‘Tiger’ economy-style growth rates experienced in the 1950s and 1960s. For several years Yugoslavia was actually the fastest growing economy in the world. The worker self-management system, as Horvat (1976) has consistently pointed out, signally contributed to the extremely rapid and equitable reconstruction of the country after the devastation of World War Two, not least through the construction of a high level of social solidarity and enterprise level motivation. Conceptually, the long experience with worker self-management helped to establish the broad feasibility of an industrial system based upon important – though far from perfect in practise – elements of democracy, consensus-building, social justice and humanity (Horvat, 1983, 2002). It was entirely feasible, therefore, that through negotiation and 1

The views expressed here are the author’s personal viewpoint. This chapter is primarily based on ideas present at two conferences in 2001 in Hvar, Croatia and in Trento, Italy. The author wishes to thank all those participants who commented on the paper at the original conferences and subsequently.

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MILFORD BATEMAN compromise the various incremental movements towards separation and pluralist democracy could have ultimately led to a Czechoslovakia-style peaceful parting of the ways. However, this was not to be. Against a background of economic stagnation, hyper-nationalist propaganda and popular resentment at the unequal impact of an IMF-imposed ‘shock therapy’ reform programme (see Woodward, 1995), the country’s collective leadership failed, tragically, to agree on a way to peacefully lay to rest the Federation. The policy framework within which the reconstruction and development of the region has been undertaken since 1988 is based upon the radical free market neoliberal political project that came to prominence in the late 1970s. Even though the neo-liberal model has been quite unable to ensure a sustainable and equitable growth trajectory almost everywhere where it has been adopted, and in many countries it has directly led to catastrophic economic and social consequences, its establishment as the conventional policy wisdom was nevertheless secured by the self-interest and power of its main proponents – that is, the US government, the World Bank and the IMF (see Stiglitz, 2002). The Washington ‘troika’ argued that only if the neo-liberal fundamentals were put into place would a successful recovery be forthcoming (for example, see World Bank et al 1996; World Bank, 1997, 1999, 2000). Crucially, it was agreed by all international bodies and western governments that a successful economic recovery was absolutely central to the peace-building process underway across the region. It is therefore extremely unfortunate that the neo-liberal policy model has been associated with very little substantive progress in South-East Europe in terms of establishing a sustainable economic and social development trajectory. The on-going physical reconstruction of the region – roads, bridges, buildings, shops, etc – has given a superficial gloss of progress and normalcy in many parts, and for a very small urban elite in each country there has been an historically unique opportunity to appropriate unimaginable wealth and power. However, the underlying prospects for the vast majority of the people in the region remain quite bleak. Poverty and social exclusion have risen to historically unprecedented levels, the industrial sector has largely collapsed, the trade balance in nearly all countries is now unsustainable, the agricultural and rural sectors have been decimated, the young and best educated have left the region in significant numbers, unemployment levels are now officially among the highest in the world, a large percentage of the jobs that still exist increasingly involve subsistence wages, the previously equal access and comparatively high quality public infrastructure (health, education, recreation) has all but imploded and what remains is now restricted to those lucky few with an ability to pay in hard cash, and inequality has risen to unprecedented heights (see UNDP, 1999, 2002; Young, 1999; Stojanov, 2000; Daianu, 2001: Horvat, 2002). Moreover, the high level of international financial assistance that has so far effectively underpinned what little genuine economic development has taken place in the region, particularly in the case of Bosnia (Kekiü, 2001), is now very worryingly coming to an end.

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LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE This chapter argues that the neo-liberal approach to reconstruction and development imposed upon South-East Europe has manifestly failed. I specifically focus here on the enforced inactivity of one of the potentially key democratically mandated institutional vehicles – the local state2 – and argue that this factor might account for a significant part of the poor local and national economic development progress to date. The basic argument is informed by a number of factors. First, the very negative experiences so far in South-East Europe with the local strand of the neo-liberal policy model are now becoming quite apparent. The set of local economic development institutions that the international community effectively imposed – the institutions of civil society – were launched amid a fanfare of promises that there would henceforth be greater ‘empowerment’, ‘participation’ and ‘community involvement’, as well as rapid local economic development. Essentially, however, this new local institutional structure has proved not only to be profoundly undemocratic, but also patently unsuitable as an instrument to facilitate sustainable local economic development in practise. I then turn to the wider lessons that emanate from other major reconstruction and development experiences also shaped by neo-liberal policy parameters – South America and post-Communist Eastern Europe – to see whether neo-liberal policy failure in South-East Europe is perhaps an exception to the rule. Finally, I consider a number of countries – postwar Western Europe, Japan, Taiwan, South Korea and China – where success was registered in a very similar reconstruction and system-change context to that pertaining to South-East Europe today. These successful examples of reconstruction and development demonstrate that local state agency can be an important, and in some cases a decisive, factor in local economic and social development policy. I conclude that South-East Europe urgently needs to examine the possibility to ‘bring the local state back in’, in the sense of establishing pro-active local state institutions and programmes nested within a democratic governance framework and which prioritise sustainable local economic and social development. The concept of the ‘local developmental state’ sums up the core aspects of the required approach. The chapter is organised as follows. Section two provides some background to the neo-liberal local policy regime imposed upon South-East Europe since the end of the 1980s. The performance of the two key local economic development interventions that emerged under the guise of a new civil society agenda – local enterprise development agencies and micro-finance institutions – is then briefly surveyed. Section three outlines the experience of the neo-liberal policy framework as it has been implemented in Central and Eastern Europe since 1991 as well as in South America since the 1970s. Section four then outlines the successes achieved in a number of reconstruction and development episodes where local state agency was an important – in some cases, decisive – institutional intervention. I turn in the final section to some consideration of the important constituent elements of what a ‘local 2

By ‘local’ we mean all sub-national levels of government (regional, local, township, village, etc) unless otherwise made clear.

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MILFORD BATEMAN developmental state’ policy framework might involve with regard to South-East Europe today. 2. BACKGROUND TO THE RECONSTRUCTION AND DEVELOPMENT OF SOUTH- EAST EUROPE As is well known, the policy framework established in South-East Europe from 1988 onwards is a derivative of the standard neo-liberal model espoused by the Thatcher government in the UK from 1979 and by the Reagan administration in the USA from 1980 onwards, and thenceforth established as the dominant policy orientation in the world through the auspices of the World Bank, IMF and other multilateral bodies. The neo-liberal policy model is premised upon the supposedly smooth efficiency of the textbook free market mechanism – the ‘invisible hand’ – and its presumed ability to articulate a successful growth and development trajectory under all conditions (Sachs, 1990), including difficult post-war scenarios (Haughton, 1998). Recovery will be a spontaneous process based upon the rapid response of domestic and international actors (local companies, entrepreneurs, foreign investors, private banks, etc) to a newly embedded system of market incentives, private property rights and complete business freedom. Crucially, the assigned role for the state within the neo-liberal model remains quite clear and unambiguous: to ‘get out of the way’. The international community thus quite deliberately ensured that state agency would have almost no role to play in South-East Europe. Those arguing early on in favour of a pro-active economic development role for suitably modified state institutions and funding vehicles, perhaps along the broad lines of the Marshall Plan established in western Europe after 1945 or the state-led development institutions that served East Asia extremely well in the 1960s and 1970s (for example, see Amsden et al, 1994), were either ignored or else ridiculed as being in favour of providing a life-line for communism. One result of this preference was that the richer western countries thus effectively precluded in South-East Europe the use of the very same state-coordinated industrial, financial, trade and technology policies that they themselves had earlier used to develop and grow rich, a process Chang (2002) has described as ‘kicking away the ladder’. Even though this heavily ideological and self-interested approach encountered criticism and calls for (at the very least) a more pro-active role for state structures and local industrial policy (for example Bateman, 1995; Petrin, 1995), the promise of financial assistance to the governments of South-East Europe, and/or the threat of withdrawing it, was usually enough to persuade any doubters in government that there was no alternative to the neo-liberal model. This neo-liberal ‘minimal state’ preference was also played out in spite of the decisive role played by state institutions at the community, municipality, city and county level in the successful reconstruction and development of the former Yugoslavia after 1945 (Horvat, 1976, 2002). Inter alia these sub-national institutions managed to produce positive local economic and social development responses to the (often sub-optimal) macro-economic framework set jointly by the 116

LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE Federal and Republican governments (Bateman, 1993). However, after 1991, but particularly after 1995, local governments were effectively stopped in their tracks from attempting to re-build and modify this earlier capacity (Bateman, 2000a). The international community specified, instead, the dismantling and disengagement of most local state capacities and institutional vehicles. As very much in Africa and many parts of Asia from the 1970s onwards, local civil society institutions were to be vigorously marketed as the replacement for state agency with regard to promoting local economic and community development. This goal was assured in practise by channelling the bulk of international financial support for local economic development directly to civil society institutions and initiatives, and by also ensuring that any remaining central and local government funding for local economic development followed suit. As the power, resource-base and scope of newly democratised local governments began to decrease sharply in the 1990s, this was paralleled by an explosive growth in the number of un-elected and unaccountable local non-governmental organisations (NGOs) engaged in the full range of local economic development issues. The vast majority of local people who might otherwise have felt that they were in a position to influence and shape the process of reconstruction and development through the democratic process, and thereby more closely identify with the likely sacrifices and burdens required, were effectively disenfranchised at the very point where democratic structures were of the utmost importance to their future. Elected local (and national) state institutions across the region now had to articulate and implement local economic development policy priorities through the lens of the new raft of NGOs. Thus, a key feature of previous successful reconstruction and development episodes – democratic legitimacy, genuine popular participation and real public-private interfacing – was largely absent in South-East Europe from day one. Two local institutions within the neo-liberal model were accorded overall responsibility for driving forward local economic development – independent local enterprise development agencies and commercially oriented micro-finance institutions. The vast bulk of international donor resources for local economic development went into establishing these civil society institutional vehicles at the local level, often against the wishes of the government and local economists. What has been the outcome of these particular local strands of the neo-liberal model? The role of local enterprise development institutions was understood in SouthEast Europe well before the 1990s. In most parts of the former Yugoslavia, but particularly in the more advanced Republics of Slovenia and Croatia, there were already very many municipality-led local enterprise development institutions working successfully within the community as early as the 1960s, including some involvement in small-scale private enterprise development (Waterston, 1962: World Bank, 1981). Moreover, by the mid-1970s a whole new wave of ideas to reform the worker self-management system in the direction of greater dynamism and private entrepreneurship began to be put into practise, starting in Slovenia and then spreading south across the whole of the former Yugoslavia. This included the 117

MILFORD BATEMAN concept of pro-active local enterprise development bodies that could offer concrete support to new business projects and industrial clusters, as well as help to create spin-offs from declining large enterprises. Thus, when communism collapsed in the former Yugoslavia in the late 1980s, the local enterprise development agency concept was already a familiar concept. After 1991, but particularly after the end of the civil war in Bosnia in 1995, substantial financial support was made available to support the establishment of networks of local enterprise development agencies in most regions.3 As elsewhere in the transition economies (Bateman, 2000b), it was clearly intended that these agencies should be non-governmental, commercially oriented, private sector-led, and should ‘earn their keep on the market’ by eventually charging for the services they provided. In order to qualify for donor funding, proposals for new agencies submitted by local governments had to accord with these demands. In a number of cases, a successfully operating municipality-led local enterprise development agency was closed down and re-opened in the approved format. Reality forced most governments to recognise ‘the way the wind was blowing’ and so put aside their misgivings with the new model in the hope that desperately needed donor funding would be forthcoming.4 In addition, many well-connected individuals confident of securing employment in the new donor-funded agencies, and others expecting to benefit from related donor funding streams (such as University economics and business departments, private consultants, trainers), self-interestedly lobbied hard for the new model to be accepted. Moreover, and a clear indication that embedding free market ideology was of far more importance than any possible results, there was almost no ‘learning by doing’ or modification of the basic model in the light of highly relevant experiences elsewhere. The initial results of the neo-liberal model in other parts of Central and Eastern Europe after 1990, for example, were very discouraging indeed – most of the new agencies simply could not ‘earn their keep on the market’ and so quickly began to collapse after the donor funding came to an end (Bateman, 2000b). The very first EU-funded network of twenty agencies in Hungary went into a ‘sustainability crisis’ within only three years of its establishment. Local businesses and entrepreneurs were simply unwilling to pay for the services provided by these agencies, especially in the face of strong competition from other private service providers. Closure of the entire network was only averted by an additional tranche of donor funding and urgent attention to developing new funding sources that would allow it to continue. Crucially, by tying the agency to the provision of very simple revenue-raising business support services, in order to help it avoid becoming a 3

The name of such agencies varied across countries – Business Support Centre, Regional Enterprise Support Agency, Local Enterprise Agency, and so on - but the function generally stays the same. 4 Slovenia was one of the rare transition countries where government officials were bold enough to openly disagree with the proposed model for local enterprise development agencies. As a result, the EU’s PHARE programme of support for new local enterprise development institutions was effectively cancelled (EC, 2000).

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LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE permanent financial ‘burden’ on the state or donor community, it became quite apparent that the substantive tasks involved in promoting sustainable local economic development were not being undertaken (see Bateman, 2000b; EC, 2000). Yet in spite of these emerging and well-documented problems in the early transition economies, after 1995 the countries of South-East Europe were still very firmly instructed that they too must accept the neo-liberal model if they wished to receive donor funding. It should have been no surprise, therefore, given the more unfavourable post-war circumstances, that the serious problems that had emerged earlier in Central Europe quickly began to emerge here too, and to a greater degree. What were these problems precisely? First, it quickly became abundantly clear that the market for simple business services in South-East Europe was woefully inadequate, much more so than in Central Europe, in terms of being able to underpin the long-term funding requirements of the local agencies. Moreover, in many parts the capacity of private business support services providers was quickly increasing and providing strong competition for the few clients around. Most agencies thus quickly went into head-to-head competition with private sector suppliers. Major ‘displacement’ effects thus arose in some regions as the new well-funded (subsidised) agencies took the very few clients willing to pay for business services, leaving the emerging private sector suppliers in jeopardy. In other regions, though, the absolute lack of clients meant all business services suppliers were in real difficulty right from the start. Essentially, if an agency could not develop an income stream from commercial sources this spelled real trouble, which seems to include most of those established since 1995. However, even if the local agencies could actually survive on commercial fee earning, then they still contributed almost no ‘additionality’ in terms of local economic development because the very simple services they generally provided – business plans, simple training, marketing advice, accessing finance, contact-making, etc – could have quite easily been supplied by the private sector. Second, the commercial imperatives built into the operation of the local agencies inevitably drove them to focus on developing business opportunities unrelated to their original mandate, especially if these opportunities were particularly lucrative. This ‘mission drift’ included working with large local companies on privatisation issues, with central and local government on a range of R&D and programme activities, and with incoming foreign companies seeking information or partners. Quite a number also gravitated back towards the international donors themselves, who were usually quite willing to hire trustworthy and known local partners to work on other projects unrelated to local economic development. Most local enterprise development agencies also began to engage in a whole variety of private business deals – trading, consulting abroad, financial wheeler dealing and contact-making – in order to raise funds to keep going. Of course, a good many of the personnel took advantage of their freedoms and lack of local government oversight to indulge in their own private business ‘on company time’. Exactly as in Central Europe, therefore, the need to ‘earn their keep on the 119

MILFORD BATEMAN market’ meant that the agencies in South-East Europe all very quickly lost sight of the most important tasks and interventions that would benefit the local economy over the longer run. Thus, those local agencies that did not collapse after donor funding ended may well have remained in operation for some time, but almost all of them were not doing what they were supposed to do. In sum, three outcomes are apparent with regard to the neo-liberal model for local enterprise development agencies: most have closed down completely, some have converted into a fully private consulting firm and thus formally abandoned any local enterprise development role, and some have opportunistically integrated into other financial flows simply in order to retain the well-paying jobs of senior staff (for example, by integrating into the new wave of Regional Development Agencies (RDAs) supported largely by the EU). All these practical outcomes are indicative of there being very little, if any, local economic development return on the huge initial donor funding commitment. Irrespective of these manifest failures on the ground since 1995, establishing the neo-liberal civil society model for a local enterprise development agency still remains the top priority in South-East Europe today. For example, support for enterprise development re-started for Serbia and Montenegro in the aftermath of the NATO intervention of 1999 has permitted almost no modification of the basic model to account for these previous difficulties. In Croatia non-governmental local enterprise development agencies – so-called Entrepreneurship Centers – are still being uncritically supported and constructed in some regions using scarce second generation donor funding, with almost no concern whatsoever to account for why the very same structures are collapsing or are moribund in most other regions of the same country. The huge pressure to persevere with the correct ideological model is apparent also at the national level, in relation to national enterprise development agencies. For example, the World Bank and the EU remain adamant that national agencies being established in the region can be self-funding through developing their own commercial revenue opportunities (see World Bank and EU, 2001, p 102). With no evidence whatsoever to justify such a claim, it is as if the last ten years of failed attempts at institutional sustainability across the region have never happened. To repeat, such obfuscation and omission can only mean one thing: that the overarching importance of such interventions is very clearly less to do with their actual performance as local enterprise development instruments, and much more to do with ensuring that the ideologically correct non-governmental structures become embedded within the emerging post-communist society. Turning now to the role of micro-finance institutions (MFIs) in local economic development, it would appear that here also a radically new local institutional structure has emerged in line with key neo-liberal imperatives, rather than according to sustainable local economic and community development criteria. This is the socalled ‘new wave’ of MFIs. The ‘new wave’ MFI model refers to the large-scale delivery of financial services to poor communities through commercially-oriented, competing, non-governmental, financially self-sustaining lending bodies (see Otero and Rhyne, 1994; Robinson, 2001). The ‘new wave’ MFI is effectively meant to 120

LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE supersede those MFIs associated with state or collective/co-operative ownership and/or control, linked in with government policy priorities, possibly requiring continuous financial support, and generally working to support sustainable enterprise projects rather than just those capable of repaying a loan over the shortterm allowed. The ‘new wave’ MFI model has to date received an enormous amount of support from the major multilaterals (especially the World Bank and EBRD), key western governments (particularly the US government through its USAID arm) and international NGOs. Conceptually and practically the model has been offered significant support from organisations not conventionally associated with a concern for the situation confronting the world’s poor, such as multinational corporations and major conservative media outlets.5 Accordingly, the ‘new wave’ MFI model has attracted substantial political support and donor agency funding in the context of the reconstruction of South-East Europe (World Bank, 2000). The presumed positive overall outcome of the ‘new wave’ MFI model can be directly traced back to the standard neo-liberal contention that poverty and underdevelopment are a result of market imperfections – here a generalised lack of smallscale finance – rather than related, say, to structural constraints within society associated with class, power, gender, ethnicity, and so on. It is posited that commercially-viable MFIs that can achieve both sustainability and greater outreach will ensure that the largest number of people have access to finance over time and can therefore engage in small-scale entrepreneurial activities; ergo the largest number of clients that will be able to raise their individual and household income levels and thereby effect an escape from poverty. The crucial conjecture is that because individual clients generally tend to be seen to be better off than non-clients, an overall increased supply of small-scale finance, which leads to more clients being supported, can thus be aggregated to give a wider beneficial outcome for the community and national economy too. However, four longer run negative externalities on the ground appear to be overwhelming whatever short run positive impacts there may be (see Bateman, 2003). First, there is an obvious de-industrialising effect that arises as the entrepreneurial/financial incentive structure within the local economy is incrementally adjusted in favour of short-term, high profit, low technology, quick payback ventures. This new environment has clearly acted to ‘crowd out’ those projects requiring greater investment, using skilled labour, adapting relatively sophisticated technologies, and where there are long financial break-even points, only ‘adequate’ profits or costly ‘learning curves’ to endure. Such an environment – 5

For example, the high-profile Micro-Credit Summit campaign has garnered a very exclusive list of individuals, senior politicians and multinational corporations, who have agreed to offer support for its aim of bringing commercial micro-credit to an additional 100 million families throughout the developing world by 2005. The New York Times and magazines such as Business Week have increasingly seen fit to editorialise and uncritically publicise the presumed benefits of commercial (i.e., ‘new wave’) micro-finance provision as a way of helping the poor in poor countries.

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MILFORD BATEMAN it can be termed a ‘disabling’ environment – is overwhelmingly suitable to facilitate mainly the growth of kiosks, shuttle trading, catering, petty retailing and small-scale food processing operations that add value very quickly. It has proved wholly unsupportive towards the many possible ventures that could, say, have emerged from the region’s substantial defence, construction and engineering sectors. It should also be stressed that this ‘crowding out’ effect is central to the operation of the ‘new wave’ MFI model, rather than peripheral, because of the sheer size and coverage achieved in the region: there are often simply no other MFIs to approach if one wants to obtain small-scale sums of money for a new business project. Partly this is because ‘new wave’ MFI advocates tend to be the most vociferous critics of any ‘soft loan’ alternatives and have a history of actively resisting such ideas whenever they emerge from local bodies and individuals (see next point). Moreover, even if ‘new wave’ MFIs eventually reach sufficient scale and outreach to deal with riskier and more sophisticated businesses, as proponents claim will indeed be the case (Robinson, 2002), irreparable damage will have been done to the local economy in the meantime and few individual entrepreneurs or businesses may then need their services – a clear case of the cure being found, but in the meantime the patient has died. This de-industrialising role has been particularly marked in Bosnia, where a network of ‘new wave’ MFIs was established in 1997 by the World Bank with over USD 40 million of donor funds, followed shortly after by the country’s first ‘new wave’ micro-enterprise bank – MEB Bank – using just over USD 20 million of mixed donor funding. Overwhelmingly the main clients of these structures are as elsewhere – kiosks, retailers, caterers, shuttle traders and the like. Most other ventures, including most sustainable ones, were effectively ‘crowded out’ by the combination of very high interest rates and short-term repayment requirements, and sometimes also the need for significant collateral. The early results prompted some of Bosnia’s best economists to suggest an alternative. Quickly recognising that the country’s hard earned and not insignificant industrial legacy was effectively being abandoned thanks to this new local financial structure, they lobbied the international financial institutions to support an SME (small to medium-sized enterprise) Development Fund that would attempt to identify and comprehensively ‘crowd in’ the most dynamic ventures. But the response from the international financial institutions was patently clear: the ‘new wave’ market-driven MFI simply had to become the benchmark for all local financial institutions in Bosnia (as elsewhere). The alternative approach was pointedly blocked. This left the ‘new wave’ MFIs as effectively the only source of capital for small enterprise development in Bosnia.6 Notwithstanding the welcome short term boost to employment and wealthgeneration registered in those micro-businesses that were supported by Bosnia’s ‘new wave’ MFIs, the longer run result of the ‘disabling’ financial environment 6

Bosnia’s new private and privatised commercial banks were then (and still are) extremely risk-averse and resisted to deal with the local enterprise sector, preferring instead to ‘invest’ their locally mobilised financial resources in German and UK bank accounts (ýauševiü, 2002).

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LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE thereby created is proving to be catastrophic for the Bosnian economy overall, a fact lamented by many local economists (see Stojanov, 2000). The UNDP bleakly concurs, reporting that the Bosnian people have effectively been ‘condemned to reliance on a grey, trade-based, unsustainable economy rather than a productionbased one’ (UNDP, 2002, p. 38). Related to the de-industrialisation argument is a second adverse consequence of the ‘new wave’ MFI. This is the causative link between the type of clients necessarily (if only initially) preferred by the ‘new wave’ MFIs and the rise of import dependency in South-East Europe. As noted, ‘new wave’ MFIs were obliged to support large numbers of shuttle traders and small-scale importing operations, these being the only activities capable of repaying high interest rates on loans offered over very short time periods. The additional and immediate flood of imported products thereby generated added to the existing pressure on potentially viable local production-based enterprises engaged in the process of re-learning, reinvesting, re-tooling and restructuring in order to compete on local markets. The wholesale collapse of great swathes of industry followed, a good deal of which could eventually have been put into profitable use given more time and support. Moreover, it was very well known beforehand that deliberately and quickly established import channels would likely destroy even the most viable local industrial units before they had had time to ‘get their act in order’ (see SAPRIN, 2001). The situation has now reached comic proportions in some parts of the region, notably in Bosnia and Kosovo. Here the donor funded ‘new wave’ MFI banks have become very profitable – in fact, the most profitable in all of Central and Eastern Europe7 – largely by helping a new trading and importing class to emerge. Meanwhile, however, the local industrial and agricultural economy continues to stagnate under the weight of the imported items that such traders facilitate, and genuinely sustainable development ventures continue to be cast aside largely because of their initial inability to cover the high price of capital on offer. It would be hard to conceive of a policy model better able to establish in the region an ‘African-style’ colonial scenario of a small, but very rich and powerful trading/importing class ranged uneasily against an impoverished and largely unemployed or under-employed population. Third, the lobbying power of the ‘new wave’ MFIs has increasingly sought to de-legitimise the role of state agency in local economic and community development. As noted above, there are a great many examples where pro-active state-led development funds and financial institutions have been proposed in the region, but these ideas have been firmly blocked by the international financial institutions. The ‘new wave’ MFI approach could exist side-by-side with other more pro-active structures offering long-term financial support, not least because their client base is likely to be very much different. But such a multi-faceted approach has simply not been tolerated. Unlike in many other countries under reconstruction 7

Reported in The Economist magazine, 14 September 2002.

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MILFORD BATEMAN where pro-active state SME development banks and local financial funds provided absolutely critical support for local economic development (see below), this option – of course suitably modified to take into account local conditions – has been denied to South-East Europe. Institutional diversity, a critically important aspect of any successful reconstruction and development policy (Chang and Kozul-Wright, 1993), has thus been precluded. Finally, the ‘new wave’ MFI approach paradoxically undermines one of the new cornerstones of the neo-liberal policy agenda itself – the concept of social capital as derived from the work of Putnam (1993) and which the World Bank now sees as a “missing link” in development (Grootaert, 1997). In truth, the de-contextualized concept of social capital associated with Putnam’s original contribution has been largely de-bunked since it came to prominence in spectacular fashion in the mid1990s, devastatingly effectively by Fine (2001) and Harriss (2002). However, leaving aside the question of what objective value is inherent within the social capital concept as deployed by the main international development agencies today, if social capital is construed as being critical to development then it should surely be of real concern to them that the ‘new wave’ MFI approach undoubtedly serves to undermine its accumulation. In general, by re-casting individual survival solely as a function of individual entrepreneurial success, the bonds of solidarity, trust and cooperation that traditionally exist within, and serve to bind together, communities are inevitably undermined. More specifically, whenever community development and support activities are recast as commercial operations – a central operating principle of the ‘new wave’ MFI model – the unavoidable consequence is the degeneration of the level of local solidarity, interpersonal communication, volunteerism, trust-based interaction and goodwill (see Leys, 2001). As commercial bodies increasingly operating to profit-maximising goals, the raft of ‘new wave’ MFIs established in the region has so far been largely unable to build the longer term local commitment, identification and trust associated with those MFIs more firmly embedded within the community, such as a local development banks, artisan funds, financial cooperatives and credit unions. For example, ‘new wave’ MFIs entering the poorest mountain and upland villages of Albania in 1991 soon moved away in search of better commercial opportunities in the urban areas, leaving their unfortunate clients once more to go without support. Already better off communities were seen to be receiving a further injection of external funds, and inequality between communities grew even faster. The new community-based MFIs that had to be established in the vacuum had major difficulties to overcome the cynicism, suspicion and collapse of inter-village co-operation generated by the first project. In Bosnia and Montenegro, a number of the most successful ‘new wave’ MFIs have already converted into commercial banks, and they too have largely abandoned working with very poor clients in favour of comparatively well-off individuals able to afford high interest rates and provide substantial collateral. Note that, as above, even if scale economies do eventually allow ‘new wave’ MFIs to expand their operations once more to the poorest communities, the damage inflicted on local social capital stocks in the meantime may be irreparable. 124

LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE Given the above problematic experiences with the main local instruments of the neo-liberal policy model to date in South-East Europe, a number of issues naturally arise. First, a question – if the key civil society institutions used are so inefficient, as I argue is the case, how is it that they are not only tolerated but also actively promoted above all others? Here I would simply reiterate the argument made by Chang (2002), but also in keeping with possibilities raised by earlier conservative institutional theorists such as North (1990), that socially inefficient institutions can routinely persist because they reflect the demands of the powerful (see also Wade, 1996). In post-communist Eastern Europe it is the unquestioned application of neoliberal market imperatives that is of fundamental importance to the international financial institutions, and not so much the actual results of specific interventions. The second area of enquiry is to consider what other past experience there is of the neo-liberal policy model being used as the basis for reconstruction and development. Perhaps this will indicate the real potential of the neo-liberal model over a longer time period than in South-East Europe. The next section therefore considers in more detail some other examples where the neo-liberal policy model has been central to the articulation of a reconstruction and development trajectory. 3. NEO-LIBERAL POLICY AND RECONSTRUCTION AND DEVELOPMENT There is a relative wealth of experience of the application of the neo-liberal policy model in a number of testing circumstances. Perhaps the model’s first big test was in the USA itself, in the aftermath of the First World War. Here, Pieper and Taylor (1998) point out, the promotion of extensive financial liberalisation and industry self-regulation in the 1920s was perhaps not the answer, since it ended up precipitating the Great Depression.8 This catastrophic experience led to the important works by Polanyi (1944) and others, famously including Keynes, which effectively ended the myth of the self-regulating market (for the next couple of generations that is). There are also more recent experiences with neo-liberal policy in practise that are perhaps more relevant, including South and Central America from the 1970s onwards and, for sure, the experience of Central and Eastern Europe after 1990. These deserve a more detailed consideration. 3.1. South and Central America Neo-liberal policy was first operationalized in South America in the 1970s in the form of World Bank and IMF Structural Adjustment Programmes (SAPs). Growth was resumed for a time, and the initial successes seemed promising. However, the programmes came unstuck because they ultimately led to a huge increase in poverty 8

The parallels here with the extreme liberalisation and industry self-regulation policies promoted by the US government in the 1990s, which have also severely undermined economic performance, are quite striking (see Hutton, 2002).

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MILFORD BATEMAN and inequality. Barraclough (1991) also points to the dramatic growth of landlessness in the agricultural community as a major factor in undermining both the legitimacy and efficiency of the programmes. Popular resentment at the harshness of the reforms rose dramatically, not least because of the seemingly unfair treatment meted out to the bulk of the population (the rich urban elites were shielded from the effects of the structural adjustment programmes). Strikes, unemployment and social unrest grew alarmingly, and the early gains began to unravel. One ultimately crushing aspect was that the neo-liberal programmes stipulated that central and local governments could not interfere with the private sector’s wish for unrestricted access to foreign loans. Most governments were quite unable to stop most of this new loan capital going into speculative land projects, extensive equity purchases of both domestic and foreign issue, and other short-term ‘get rich quick’ projects. But when conditions changed and the private sector (which included very many subsidiaries of major western multinationals) was unable to service the huge foreign debts it had built up, many free market-oriented governments were forced to socialise their entire banking system in order to avert a major financial sector collapse (Akyüz, 1998). Nationalisation of the banks was a major diversion from the standard neo-liberal policy model, but it was thought important enough in order to protect the small number of bankers and investors from the folly of their own decisions. A succession of Latin American countries only managed to stave off complete economic collapse thanks to the urgent infusion of substantial international financial support. The resulting imposition of austerity programmes to shore up the fiscal balance tore into the social fabric and effectively cancelled out all of the previous gains made through many social and rural community programmes (including donor financed ones). Public spending rose to address the new needs of the collapsing economy, though the burden – once more – was unequally distributed. A number of bodies, such as UNICEF (1993), have pointed to the fact that personal income tax in South America is very low in comparison with most other developing countries, so that public spending on the infrastructure and other key social assets could actually be maintained through increases in income tax on higher earners. However, neo-liberal policy insists that increasing taxes on consumption, which clearly hit the poor hardest, must take priority over increasing taxes on income (and, of course, low taxes are to be preferred to high taxes), and so this obvious policy option was not explored. Meanwhile, according to Oxfam (1996, p. 13), the number living in extreme poverty in South America increased from 62 million in 1980 to 93 million by 1990. From 1984 onwards, neo-liberal reform policies were introduced into Central America too, in Mexico under the Salinas administration. Here the end came just under ten years later, in 1994, when a financial collapse found the international community once more forced into putting together a major emergency rescue package in order to bail out the banking and investment communities. As in South America, inequality in Mexico grew dramatically in the 1980s and early 1990s, rising by 15 per cent in the 1994–1995 period alone (Faux and Mishel, 2000). The tragedy continued into the 1990s, spectacularly in the case of Argentina. Following the earlier breakdown of the previous neo-liberal programmes in 126

LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE Argentina undertaken under the military dictatorship, in the late 1980s the new government agreed to implement once more, and even more decisively this time, the full package of neo-liberal policies. Indeed, Argentina stands out today as one of the countries that have most vigorously and thoroughly implemented the neo-liberal policy model. Unfortunately, the results of this latest version have been even more catastrophic than its predecessors. The initial early 1990s boom was underpinned by the sale of virtually all of the countries main public utilities and other assets to foreign multinational companies, which quickly hiked up prices and began repatriating profits back to their home country on a huge scale. The downward effect on the incomes and demand of the poorer communities brought about by the now higher utility prices was marked. Terminated contracts for non-payment meant that whole new communities now exist 19th century-style without access to energy, water, waste collection and other amenities. The apparent ‘boom’ effectively came to an end when there was nothing left to sell off, though other crises elsewhere – in particular East Asia – no doubt helped to push the teetering economy over the edge. Argentina was forced to signal in 2001 that it was likely going to have to default on its debts of over USD 128 billion, creating the largest sovereign debt default in history. Poverty and unemployment subsequently rose dramatically, wages of the bottom sections of society collapsed even further, great swathes of domestic industry got into serious difficulty and/or closed down, and the entire country seemed about to explode. Even if a recovery can somehow be fashioned in the coming years to save what remains of the economic structure, perhaps through a one-off devaluation boost, it will once more take many years before the situation is back to where it was at the start of the decade.9 3.2. Central and Eastern Europe Since 1990 Consider also the case of post-Communist Central and Eastern Europe. Here also, as pointed out by such as Amsden et al (1994) and later by Stiglitz (1999, 2001), the neo-liberal policy approach appears to have fared very badly, if indeed it has not been responsible for an outright calamity in the region (Andor and Summers, 1998). In spite of some uncertainty on the part of local post-Communist elites as to the efficacy and desirability of the neo-liberal ‘shock therapy’ policy model, it was nevertheless adopted by most governments in the region. As very much in SouthEast Europe, the promise of substantial financial support to the first post-communist governments was made conditional upon its adoption. Initially, the transition to more market-based economies in the region was widely supported by the 9

Ironically, while the neo-liberal macro-policy packages were extremely problematic at the national level more or less from the 1970 onwards, there has been a wealth of pro-active local, city and regional government-driven economic development activity in Argentina and Chile that have significantly helped to offset these negative aspects (for example, see Casaburi’s (1999) description of the government’s strategic role in the creation of the fresh fruit and dairy export industries).

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MILFORD BATEMAN overwhelming majority of the people, in the expectation that it would bring fairly quick economic recovery, and that western-style living standards would soon follow. This is indeed what most incoming advisors predicted if only the basics of the neoliberal model were adhered to (Sachs, 1990). However, save for a small urban elite, the rapid dismantling of central planning and the imposition of neo-liberal policy programmes has brought far less immediate benefit than expected. In fact, the transition process has so far simply reshaped and, for a great number of people, actually intensified the nature of the poverty, inequality, exclusion, despair and powerlessness that existed under communism. A collapse in output was followed by major increases in poverty and unemployment, and drastically deteriorating public health and social welfare systems (Standing, 2002). A new class of ‘working poor’ began to emerge after just a few years (Standing and Vaughn-Whitehead, 1995), while inequality and social exclusion have risen steadily, and at times dramatically, over the last ten years (Milanovic, 1998). Debt levels began to rise to exceed pre-communist levels in many countries in the region, while the crucial fiscal stopgap provided by the proceeds from privatisation is now coming to an end. In order to encourage FDI (Foreign Direct Investment) and mobile multinational capital flows, wages had to be capped and trade unions suppressed. But even where FDI has been forthcoming to a significant degree the benefits have often largely flowed to foreign and local elites, and are anyway often transitory. Privatisation has denuded the previously comprehensive health system in favour of one where cash payment is now routinely required for basic access and emergency treatment. Lastly, agricultural production has declined in nearly all of the countries of Central and Eastern Europe as a result of intense competition from heavily subsidised (mainly EU) suppliers, creating rural poverty of a historically unprecedented magnitude. Most countries in the region have only recently begun to approach the GDP levels they started with in 1990 when they brought their respective centrally planned economies to a sudden halt, though these statistics, it must be strongly emphasised, mask the dramatically skewed distribution of whatever real gains have been made since then. Stiglitz (2002) points out that Russia has been devastated on virtually all fronts – industry, infrastructure, inequality, health, corruption, criminality – thanks to the sudden imposition of the neo-liberal reform package. Thanks to a near 40 per cent decline in GDP in the first few years of the transition, the number of poor people in Russia (those living on less than USD 4 per day) rose from 2 million to 60 million by 1995 (Stiglitz, 2002), with the new poor co-existing very uneasily alongside the tiny, but stratospherically wealthy, new Russian elite. Consider further the case of Poland, which is often considered to be the ‘star performer’ of all the transition economies. For a very small urban elite there has undoubtedly been a major improvement in living standards since 1990, but the situation otherwise is very bleak – dramatically rising levels of poverty in non-urban areas, vastly increased social tension, the rise of ultra low pay as the norm, a significant deterioration of the health of the population since 1989, and unemployment reaching 18 per cent by mid-2002 and likely to go even higher as the 128

LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE long-delayed privatisation program finally gets into gear and a new ‘flexibilityinducing’ Labour Code is introduced. There have been particularly severe problems in the agricultural sector, once one of the main motors of development in the Polish economy. On instantly liberalising the economy, Poland was immediately exposed to the stronger EU Common Agricultural Policy (CAP) supported agricultural sectors to the west. The immediate result was that the agricultural sector quickly lost significant market share in just about all categories, turning a USD 557 million surplus on agricultural products in 1989 into a USD 333 million deficit with the EU by 1993 (Andor and Summers, 1998, p. 109). Farm incomes fell by 50 per cent and by 1995 60 per cent of farms were technically bankrupt (Andor and Summers, 1998, p. 109). Field researchers such as Kowalski and Kaminski (1999, p. 52) report that in the rural areas of Poland today there is abundant evidence of a decline in the average conditions of employment ‘to those prevalent in the nineteenth century’. Moreover, by around 2001 a deterioration in the underlying economic situation was exposed that threatened to cancel out what progress has been made to date. Even EU Accession appeared to be under threat from the rising tide of bad economic statistics and ongoing industrial collapse.10 Summarising the adverse trends in mid-2002 the Economist magazine – an earlier very strong advocate of the radical neo-liberal policy approach to post-Communist reconstruction – was forced to lament that against a background of a now quite unsustainable trade deficit (over USD 6 billion in the first half of 2002) and seemingly unstoppable industrial contraction, it had come to the point where it no longer had any idea ‘what Poland will [now be able to] export to support its 40m people . . .’.11 But of most interest, given the theme of this chapter, is the initial explanation for the so-called ‘Polish economic miracle’12 – successful local economic development via small enterprise development. This ‘success’ was supposedly manifest in the massive early rise in micro-entrepreneurship after 1990 (more than 2 million new entrepreneurs registered in just two years), which was celebrated as a direct result of the neo-liberal policy package. This was the up-beat approach adopted, for example, by Johnson and Loveman (1995).13 However, and notwithstanding the obviously important monetary and other benefits accruing to those directly concerned, the huge initial inflow of shuttle-traders, importers, retail 10

The Economist, 21 April 2001, p. 32. The Economist, 27 July 2002, p. 38 12 Less attention has been paid to the fact that the early fears that the Polish ‘shock therapy’ programme might collapse early on and discredit neo-liberal policy programmes throughout the post-communist world prompted Poland’s official creditors to agree to an immediate 50 per cent debt forgiveness programme (worth about USD 25 billion) in 1991 (Andor and Summers, 1998, p. 71). This massive level of support was not forthcoming to the other countries in the region and is generally not factored into any account of its early success. 13 In the foreword to Johnson and Loveman’s book, Jeffrey Sachs, considered by many to have been the principal architect of the neo-liberal ‘shock therapy’ programme adopted first in Poland, gave unqualified support for these conclusions. 11

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MILFORD BATEMAN outlets and kiosks that largely constituted this new entrepreneurial class gravely undermined the industrial and agricultural fabric of the country. Whole swathes of potentially competitive industry were quickly wiped out thanks to the instant arrival of competition. The huge initial surge in the number of ‘buy cheap (from abroad) and sell dear (locally)’ shuttle-traders and self-employed importers in Poland thus very effectively smoothed the way towards growing trade deficits, particularly with regard to the one sector – agriculture – where local comparative advantages were initially quite high. Whole swathes of small-scale retailers originally established as job generation projects were then wiped out as the inevitable and predictable largescale retail developments missing in Poland finally came on stream. Moreover, the temporarily high profits realised in many sectors dramatically adjusted the incentive structure affecting entrepreneurship throughout the country,14 greatly discouraging industrial and technology-intensive business projects – in fact any business idea where commercial viability was expected over a marginally longer-term time period than six months to one year. Given the Polish government’s unwillingness to offer any local industrial policy assistance to small-scale projects,15 just as for large-scale restructuring projects (Amsden et al, 1994), it was only to be expected that the industrial base at the local level would begin to dissolve as it has. 4. AN ALTERNATIVE POLICY FRAMEWORK FOR RECONSTRUCTION AND DEVELOPMENT Contrasting with the above experiences are a number of countries that adopted an alternative economic policy framework to the neo-liberal package. Most often described as the ‘developmental state’ model (Johnson, 1982; Chang, 1994), it is an approach founded upon a pro-active state apparatus working towards long-term industrial developmental goals, social inclusion and technology ‘catch up’. However, one of the central explanatory factors behind the success achieved in a number of countries covered by the ‘developmental state’ argument was actually the pro-active role of specifically local, rather than national, state institutions. Consider the following brief examples, starting with Japan. In Japan, a dense tissue of local and prefectural (regional) state-led institutions worked very successfully to promote the community and SME development. Local 14 Real interest rates are partly a function of the local opportunity cost of capital. Accordingly, with the local opportunity cost of capital in Poland initially very high thanks to the high margins made on trading and importing operations, most banks pushed to raise their effective interest rates as much as possible via the imposition of fees, management charges and one-off payments. Effectively, this was in order for them to capture a share of the high returns being generated elsewhere. Those enterprises not in the trading and importing sector, of course, also had to cover these high interest rates if they wished to access a loan. Most couldn’t. 15 Leszek Balcerowicz, the architect of ‘shock therapy’ in Poland, made it quite clear that he favoured offering no state financial support for small enterprise development whatsoever, believing that stabilisation, privatisation and liberalisation – that is, the neo-liberal model – were essentially all that would be required for sustainable small enterprise development to take root (Balcerowicz, 1995, p. 246).

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LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE governments were encouraged after 1945 to develop a wide array of support programmes and measures to assist small enterprises. They were particularly quick to introduce an extensive range of low-cost financial support policies to help the most vulnerable individuals (particularly de-mobilised soldiers) establish new small industrial units. The resources for these measures came partly from central government and partly from local savings mobilisation through local state-owned banks. In addition, large numbers of credit unions, financial co-operatives and other forms of small-scale mutual association were also re-established by state prompting and initial capitalisation. Crucially, these non-state financial institutions were also strongly regulated by prefectural and local governments, working alongside the Ministry of Finance, in order to avoid any fraudulent activity that might undermine both the fragile economic situation and the important social consensus constructed within the community. These local financial institutions became important complimentary community-based providers of funds for new starts and small growing enterprises outside of the state support schemes, thus promoting important local ‘savings and investment cycles’ (Nishiguchi, 1994). Friedman (1988, p. 167) summed up the financial system for small-scale enterprises in Japan as being nothing less than, ‘an industrial equivalent of the American savings and loan system for the US housing market (but funding) not home ownership but independent factories’. Crucially, very many of these small-scale enterprises found their way into the supply chains then being constructed around the large export-oriented motor vehicle and electronics firms. The market mechanism thus provided the background against which the local state was able to promote and finance those local enterprise sectors and foreign technologies it calculated would generate most benefit to the economy in the longer run, yet which the market was unwilling to support because of the high risk and low profitability. Overall, local economic development policy has been officially cited as one of the ‘two major pillars of Japanese economic development policy since the Second World War’ (MITI, 1980, p. 14).16 In northern Italy, a raft of very successful small enterprises arose after 1945 in a region that became known as the ‘Third Italy’. The contribution of the local state was critically important. Pro-active municipal and regional governments, often working with very little support from central government, were determined to reconstruct the region through local economic development and, particularly, through small enterprises. Great value was placed on promoting small enterprises that would become embedded within an industrial community where local cooperation mattered as much as, if not more so, than local competition. These factors provided the motivation to build a solidly supportive institutional structure within, and within the orbit of, the local administration (a development that did not, however, take place in the south of Italy). Extensive systems of local financial support were established by both the regional and municipal administrations. For example, Peluffo and Giacche (1997) highlight the importance of the regional state16

The other was the more familiar national export policy.

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MILFORD BATEMAN owned banks and credit institutes, which were encouraged to channel affordable financial support into local small enterprises. A whole host of other local financial institutions were established by the regional and municipal governments, including Artisan Funds that were, as Wiess (1988) emphasises, extremely important to machine purchase and workshop modernisation. In addition, large chunks of abandoned land and business premises were rapidly converted by local governments into industrial parks and “cottage industry” incubators, in order to encourage a large number of entrepreneurs to try out new business ideas with a minimum of fuss and risk (Best, 1990).17 A critically important factor behind the early post-war success of small enterprise development in the northern regions was the high level of social cohesion, trust and civic tradition fostered by the pro-active regional and local governments. These factors underpinned the multiple layers of inter-enterprise and community cooperation that strongly encouraged local business development and investment. One practical indication was seen in the high-trust region of Emilia-Romagna, which also had the highest concentration of co-operatives and co-operative institutions in all of Italy (Birchall, 1997). High levels of local trust and social cohesion also meant that the municipal and regional governments generally had the moral authority to enforce a local inter-class consensus or ‘social contract’. For example, local workers willingly accepted an initial period of wage flexibility (i.e., low wages) during the reconstruction period as part of a fair disbursement of the costs and benefits of local economic success, with the guaranteed return on this ‘sweat equity’ investment coming a little later in the form of extensive kindergarten provision, high quality social welfare services, quality public infrastructure, and so on. This widespread understanding that all must benefit from the reconstruction effort, and not just the most aggressive or entrepreneurial, encouraged most people and social groups to ‘buy in’ to the sacrifices and efforts required. In the former West Germany the Lander (regional) and local state were important development catalysts. Indeed, the former West German economy became noteworthy for its very dense and well-financed institutional fabric at the local and regional level (Cooke and Morgan, 1998). Of particular importance, as stressed by Meyer-Stamer and Wältring (2000), were the strong Landerbanken (regional banks) owned by the Lander governments and the publicly-owned Sparkassen (savings banks), both of which provided to small enterprises a substantial amount of affordable and easily accessible credit. Credit was affordable since these banks were aiming for longer-term sustainability through developing a solid base of industrial clients, rather than short-term profitability through servicing high-profit but ‘here today and gone tomorrow’ trading and importing ventures. The Sparkassen also became involved in the provision of other forms of institutional support for the small enterprise sector, such as technology centres and economic development agencies. The credit co-operative sector also played a vitally important role in local 17

Speculation on land was also strongly prohibited so that entrepreneurs outside of these property-led initiatives could also benefit (Best, 1990).

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LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE development in post-war West Germany, with the urban-based Volksbanken and rural-based Raiffeisenbanken becoming major providers of credit to micro- and small enterprises (Birchall, 1997). Above all, this dense local institutional structure was critical to the re-emergence of the Mittelstand (medium enterprise sector). The state’s concern to promote the Mittelstand came to be known as Mittelstandpolitik – the idea that support for the Mittelstand could ensure competition in the industrial sector, while also providing a vital social and political pillar in post-war German society, particularly in the rural communities (Braun, 1990). As in Japan and Italy, therefore, the new West German state very much based its post-war development upon pro-active regional and local state administrations that were able to develop the capacity and generate the local resources to be able to promote recovery and development from the bottom up (Weiss, 1998). Taiwan and South Korea are somewhat different from the above examples because superior industrial performance has been largely attributed to the activities of the central state, rather than local state institutions (see Chang, 1994). Democracy was also a late arrival in these countries. However, it is the case that both the initial and a complimentary development impetus was very much provided by pro-active local and village administrations working in conjunction with highly motivated local populations. In South Korea after 1960, the local township and village administrations were quick to support local farmers’ credit unions get started, establish an extensive out-reach service for farmers and potential rural entrepreneurs, and construct a layer of community services that promoted social cohesion through greater economic security and fairness (Wade, 1982). According to Whang (1981), following the establishment of the Saemaul Undong (New Community Movement) in 1970, local government became even more visible, responsive and active in its own right in promoting an Integrated Rural Development (IRD) approach to community development. In Taiwan, the townships and village state bodies supported local farmers’ associations which were able to offer credit, key inputs, technical support, co-operative marketing channels, and so on (Wade, 1982, 1983). The government initially put most of its effort into the rural communities in order to facilitate the growth of agricultural productivity. The number of agricultural outreach workers in Taiwan provided through local and village administrative units was far and away above that in other East Asian countries. As agriculture was able to provide for the food requirements of the population, by the 1960s the emphasis began to shift towards export-promotion and technology-intensive SME development, with the government establishing a myriad of local supporting institutions, state-owned banks and other local financial programmes (see Lall, 1996, pp. 98–99). Indeed, Lall (Lall, 1996, p. 207) considers the de-centralised technical support offered by the state to small-scale enterprises in then still very poor Taiwan to have been ‘the developing world’s most advanced system of technology support for small and medium enterprises’. Crucially, this technology support was quite critical to the huge entry of new manufacturing SMEs, which from the 1960s onwards, very rapidly created its highly successful small 133

MILFORD BATEMAN enterprise-dominated industrial system. Overall, Wade (1990) attributes the success in Taiwan to the fact that the government was very quickly able to establish a ‘mass of publicly owned assets and organisations . . . able to guide the market’ (p. 325). Finally, local state agency has unequivocally been at the heart of the staggering rural and local industrial transformation that has taken place in China since 1980. By allowing extensive autonomy for the local state the Chinese government was able to encourage a strong rural and urban industrial development trajectory that acted to counter-balance the reduction of activity in inefficient large-scale state industries. From the mid-1980s onwards, as Blecher (1991) points out, local governments became the key element of a decentralised developmental state apparatus willing and able to promote local economic development institutions, mechanisms and trajectories, often in conjunction with higher levels of government where appropriate. The local state was encouraged to engage in a wide range of local economic and social development initiatives that created local wealth, encouraged greater local participation in economic development and, significantly, repaired the damage to the social fabric in most local communities caused by the horrors of the Cultural Revolution. The main instrument for rural industrialisation has overwhelmingly been the local government and community-owned Township and Village Enterprise (TVE), the numbers of which rose rapidly from 1986 onwards to nearly 8 million by the mid 1990s (O’Connor, 1998). Crucially, despite their ownership structure, TVEs are profit-seeking, work under hard budget constraints and operate according to strict performance targets.18 Purushotham (1998) notes that in 1996, for example, the TVEs accounted for manufactured products valued at USD 213 billion, which amounted to two-thirds of rural economic output, one third of national GDP and 40 per cent of national exports. The high profits and taxes generated by the TVEs enabled local governments to finance a range of increasingly sophisticated business infrastructures, such as industrial parks, incubators and modern production facilities geared to foreign investors, which in turn helped to deepen and sustain the local growth trajectory well into the 1990s. Strong support was also offered to social and community development projects that extended the financial benefits of the TVEs to the wider social community, and thereby promoted the wider participation of the local population in the process of change taking place. In 1992, for example, 59 per cent of after-tax profit of the TVEs was reinvested and 40 per cent used for local public expenditure.19 Rural poverty was greatly reduced in most regions of China and, after many years of passively coping with the results of an inefficient system of central planning, local communities were able to re-emerge once more as strong and self-sufficient entities.

18 However, some of the TVEs have undoubtedly been engaged in straightforward local rentseeking operations, but this is officially tolerated (if not encouraged) because the profits and local tax revenues thereby generated flow to the local community rather than to rich individuals (for example, see Duckett, 1998). 19 Figures quoted in the Statistical Survey of China, 1993.

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LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE 5. KEY OPERATIONAL ASPECTS OF THE ‘LOCAL DEVELOPMENTAL STATE’ APPROACH IN SOUTH-EAST EUROPE The various experiences adumbrated in the above two sections illustrate two related and important conclusions. First, that neo-liberal ‘minimal state’ policy parameters have achieved very little success as reconstruction and development policy. Second, on the other hand, there are many well-known experiences of successful reconstruction and development involving a central role for pro-active state institutions. As was indicated, in many of these examples local state institutions lay at the core of the success achieved. The local state often collaborated with central state institutions (Japan, Taiwan, South Korea and China), but sometimes also it acted pretty independently (the former West Germany) and even in the face of strong resistance from central government (northern Italy). Even in some failing economies, such as in South America, there exists an interesting core of experience pointing to the potential contained in local state agency against a backdrop of macro-economic failure. From these varied experiences it is possible to distil an alternative local economic developmental model based upon pro-active sub-national levels of the state. Following Blecher (1991), we can denote this as the ‘local developmental state’ model (Bateman, 2000b). The ‘local developmental state’ (LDS) model can be broadly defined as a regional, city, local or village state administration that has developed the competence, democratic or popular legitimacy, long term vision, institutional vehicles, trust-based linkages within the community, and a range of policy interventions that combine to continuously promote, adapt and upgrade the local rural and industrial structure in response to emerging internal deficiencies and external opportunities, threats and other environmental parameters.20 Market forces are important as the background against which the LDS model is operationalized, but not in the neo-classical sense of being able to orchestrate efficient market dynamics into place through individual self-interest and market signalling. The local resource base is sometimes important to support the LDS approach, as in post-war northern Italy, but so too are the technical support and financial resources routinely passed down from the centre to local administrative units, such as in Japan, Taiwan and South Korea. Moreover, while full local autonomy and formal democracy is preferable to top down control, it is has not always been necessary on the ground. The examples of East Asia indicate that an authoritarian government denying a democratic mandate to the local state must nevertheless still allow sufficient autonomy for local state administrative units to function effectively within the local community. Non-democratic regimes realise that local economic progress can underpin their survival. Having said that, energetic local state institutions and 20

This definition owes much to the idea of ‘transformative capacity’ developed by Weiss (1998) to describe the activities of the central state in promoting successful upgrading, adaptation and restructuring.

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MILFORD BATEMAN popular participation in economic development will inevitably precipitate democracy-building measures, as was eventually the case in Taiwan and South Korea, and will surely be so in China in the not too distant future. Crucially, drawing from these examples, we can begin to outline some of the likely key components of the LDS model that might be useful in the context of the ongoing reconstruction and development of South-East Europe. 5.1. Strong Local State-led Institutional Vehicles The key base-line criterion for sustained local economic and community development is the existence of a range of local state-led institutions (i.e., owned or effectively controlled by the local state) charged with promoting a sustainable local economic development trajectory. It is important to underline the fact that it is not impossible to reproduce the key pro-active developmental aspects of state institutions, including local state institutions, that lie behind successful economic development trajectories elsewhere. As Akyuz et al (1999) make clear, key aspects of the Japanese state institutional support structure for small enterprise development were successfully adapted by Taiwan in the 1950s and 1960s, and then parts of the Taiwanese experience was in turn copied very successfully by the Chinese after 1980. Urgent local state capacity-building measures are therefore required in SouthEast Europe in order to create local institutional vehicles that can competently and impartially promote local industrial restructuring and community development. The local state must be able to act as an ‘institutional bridge’ that can facilitate the conversion of unsustainable development trajectories (e.g., de-industrialisation, growing import dependence, social exclusion, abandoning technology) into longer run trajectories that are locally sustainable and equitable. It must be able to construct and maintain the necessary technical, business and physical infrastructures that underpin effective SME development. Accordingly, training, advice, technologies, resources and legitimacy must be conferred on the local economic development capacity within the local state. One important aspect will be to reverse the trend to smaller local government units and to fiscal centralisation that has left many local state units way below a minimum efficient scale of operations. This is finally happening in some parts, (e.g., Macedonia), but in others there is much to be done to reconstruct a local administration commensurate with the ability to act meaningfully to promote the local economy. 5.2. Local Financial Support Policies The LDS approach is to take comprehensive action to build accretions of local capital (i.e., savings) and to ensure that the disbursement of local capital (and any capital coming in from outside) takes place in a manner that benefits the wider community and promotes sustainable local economic development. So-called ‘narrow development’ – development that does not address poverty and actually increases inequality – can be a direct outcome of the local financial system if it is 136

LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE structured in a way that benefits local elites, fails to deter fraud or prioritises obviously temporary forms of business development (see Addison et al, 2000). The establishment of local sources of affordable finance was a crucial aspect in all of the above examples of successful community and local economic development. Restructuring and promoting promising local enterprises is not easy, but in the absence of local financial support it is virtually impossible. This financial support was extensive (in comparison to that supplied to the large enterprise sector), affordable (i.e., below market price) and relatively accessible (i.e., no collateral required). Current financial support initiatives in South-East Europe are dominated by the so-called ‘new wave’ MFIs. Yet, as we noted above, their track record on the ground is remarkably poor for an institutional innovation gearing up to receive an even larger share of the financial support being offered to the region. The LDS policy model would therefore suggest the use of a number of alternative local financial sector interventions. First, the more extensive use of local development funds to support key small enterprises and key local growth sectors (e.g., externality creating, export potential, technology transfer promoting) that have a long-term commercial perspective. The most advanced of the South-East European states – Slovenia and Croatia – have some positive experiences with local funds established by municipalities that can be referred to. Research by Grundner and Komar (1999) in Slovenia demonstrated that the local funds established in 48 municipalities became an important source of flexible and affordable loan capital for micro and small businesses in the community. Croatia developed municipal funds as well and has also accumulated some good experience under more difficult conditions (ŽelinskiMatunec, 2000). Whether managed by competent officials or sub-contracted to outside private bodies is of little importance: what is important is that financial support is channelled directly towards potentially sustainable enterprise development and that longer run local development trajectories are patiently and judiciously supported. There is also some merit in the establishment of a local development banking function. For example, some local state-owned banks can be converted into smallscale development banks using international advice and financial assistance.21 One possible route, as proposed by Seviü (1999), is to adapt the US-inspired Community Development Bank model for use in the region. Accepting lower rates of return than commercial banks can be fully justified on the grounds that community and local economic that might be most interested are currently cash-starved, and so find it hard to address their known longer-term survival requirements, an external source of long-term financial support and technical advice is crucial. Independent venture capital funds and long-term equity investments are another area where the local state can be usefully involved. Venture capital funding and equity participation by the 21

To date the international community has offered little support for development banking in the region, as in the wider Central and Eastern Europe (see Amsden et al, 1994).

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MILFORD BATEMAN local state can be used to recycle local rents (e.g., where transport facilitates are disrupted) or benefit from local spending or development (e.g., where government spending increases land values). The Chinese example where local governments used their own capital resources to establish new industrial SMEs is a salutary lesson of what can be achieved at the local level given local commitment and a reasonably competent administration. Second, support for traditional non-governmental financial institutions – credit unions, rural savings associations, financial co-operatives and so on – is vitally important as a way of promoting local savings mobilisation and in meeting the investment needs of small-scale business projects. These independent small-scale local ‘savings and investment cycles’ are a very useful adjunct to the judicious support for key sectors noted above. While ultimately independent and selffinancing, these institutions often need an appropriate stimulus and concrete help from the local state to get established. Most importantly, as experience has amply demonstrated, in low trust environments, such as in South-East Europe at present, such financial schemes are an open invitation for unscrupulous individuals and groups to take advantage of the situation. There is therefore a need for strong regulation and oversight by the local state (see also below). 5.3. Promoting Technology Transfer and Diffusion The notion that low labour costs alone would ensure successful recovery in postCommunist Eastern Europe was a fundamentally wrong proposition to make in 1990. Instead, it was generally low product quality, lack of innovation, poor design, and the continued use of out-dated technologies that largely precluded successful reconstruction of individual enterprises. The same holds for South-East Europe today, where wages have spiralled downwards in many regions, yet most enterprises still find it difficult to find and maintain a market for their product. While technology is at a reasonably high level across heavy industries in the region, there remains much to be done at the local level to support the small enterprise sector. South Korea represents an excellent example of a country where heavy industry came to dominate the economy, but where concerted moves to then diffuse new technologies to the small enterprise sector paid very high dividends. Particularly in rural areas, its patient investment in the establishment of solid technology diffusion and upgrading processes facilitated through local and village administrations, as well as several major funds through which local supply chain-oriented small enterprises could obtain new technologies with grant and loan support, greatly improved the performance of the Korean economy. Technology upgrading support offered to small enterprises in initially very under-developed Taiwan was largely planned and implemented locally through competent local administrations, combining a mixture of central state funds and local co-financing arrangements. The end result took the country’s small enterprises to the very frontiers of new technology development in only twenty years, and underpinned the spectacular rise to power of the economy in that period. It is important to remember, particularly for 138

LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE those who might otherwise argue that a country ‘cannot afford’ such new institutions and policy interventions, that at the start of the processes described, both South Korea and Taiwan were officially among the poorest countries in the world. Clearly, promoting technology transfer and diffusion are crucial imperatives if the local industrial structure in South-East Europe is ever going to be able to incorporate a level of technology sufficient to compete for local and, later, more discerning foreign markets. To (re)start the technology transfer process then requires, firstly, that existing local applied R&D institutions are strongly supported and encouraged to develop their work in line with current and potential sectoral specialisations. New institutions may be required where the existing infrastructure is particularly weak, but existing (albeit exhausted) institutions should be targeted in the first instance if appropriate. Even in places like Bosnia, where little might be expected to remain after the bitter civil war, some extremely high quality applied R&D institutions are still just about operational.22 Second, university and other academic institutions should be brought into the frame through dedicated applied projects, and by building up a cadre of specialists in key areas ready to undertake consulting activities with local enterprises. The German method of financing secondments from the University system into local technology transfer institutions is one possibility to replicate locally to a modest degree (see Pyke, 1994). Third, the level of education and technology training needs to be supported and co-ordinated in line with local potentials. In some countries in South-East Europe where employment subsidies remain an important labour market policy (e.g., Croatia), the targeting of such subsidies to trainees and work-placements in specific technologyintensive enterprises could be a very useful approach to facilitate technology transfer. Fourth, large firms unlikely to have a commercial future should be nurtured to the extent that they can spin-off key technologies, business units and personnel into new, smaller commercial undertakings before they exit. Finally, if structured and financed appropriately, technology incubators and Technology Parks could play a major role here in co-ordinating the (re)use of specialised accretions of expertise, skills and equipment and helping newly established technology-intensive enterprises to achieve full commercialisation in the longer run. 23 5.4 Strong and Effective Local Regulation Mechanisms and Control of Speculation As noted above, there is no doubt that one of the main destabilising factors in SouthEast Europe to date has been the progressive stripping away of legislation and regulations in line with the perceived need to ‘get government out of the way’. Given also the ‘winner takes all’ mentality that has typically arisen in association 22

For example, the Energo Invest Centre in Sarajevo. Business Incubators have also had to accord with neo-liberal policy imperatives in order to obtain legitimacy and funding, and now have to ‘earn their keep on the market’ in order to survive. As elsewhere (see Bateman, 1999), this has been deeply damaging to their ability to nurse potentially high value technology businesses into existence.

23

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MILFORD BATEMAN with the imposition of neo-liberal reforms elsewhere in the world, this provided the obvious foundation upon which illegal and anti-social activities would flourish: and they have. 24 Specifically, it was widely predicted that the weak regulation of the local financial system would inevitably allow for large-scale financial fraud, ‘wildcat banking’ and bogus savings schemes. These manifestations then undermine the vital local savings mobilisation function and wider social acceptance of the reform process. An important element in building social cohesion is therefore the willingness of the local state to robustly regulate local business activities and financial systems where it has the competency and jurisdiction to do so. For example, it makes sense that local private banks should only be established by investors who can demonstrably prove they have a depth of banking knowledge, integrity and sufficient capital assets. Any financial scheme that involves the mobilisation of savings simply has to be carefully examined. Regulations may also be required to discourage certain activities, such as land and property speculation, as well as the practise of equity purchase with commercial bank loans. Second, it has also been well recognised that effective regulation of the local labour market is one task usefully performed by local government in order to minimise competition based on low-wages and low investment, and maximise competition based on high investment and flexible specialisation techniques. The local state can articulate this fair outcome through regulations ensuring fairness at work, support for Trade Unions and through local forms of redistributive taxation. 5.6. Co-operative Development The co-operative is a business format that is universally recognised as a way of promoting fairness, motivation, solidarity and inclusion at work, as well as underpinning wider community-level cohesion. In all its various guises – agricultural, workers, financial, consumer, housing, marketing, and so on – cooperatives also evince efficiency-enhancing forms of horizontal and vertical cooperation between individuals and institutions. This has particularly been the case in the northern Italian region of Emilia-Romagna, for example, which is the most successful region in Italy very much because of the multi-faceted layers of cooperation that exist between SMEs – the famous ‘Industrial Districts’ – as well as within businesses – Emilia-Romagna has the highest concentration of co-operatives in Italy (Birchall, 1997). Co-operatives were also important in Germany’s economic development trajectory in the last century, where the first financial co-operatives were established (Birchall, 1997). Networks of co-operatives established in many of the East Asian ‘Tiger’ economies, notably in Taiwan and South Korea, have proved highly instrumental in both spreading the benefits of rapid urban growth down to rural communities and in underpinning the necessary wider social inclusion that served as the basic foundation for that high growth (Wade, 1990). 24

See Hutton’s (2002) excellent treatment of these issues with regard to the USA.

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LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE Reflecting the higher economic and social returns historically generated by the co-operative sector (see Birchall, 1997), it is natural that co-operative development is a crucial aspect of the LDS model. This support should start with educational programmes that endeavour to illustrate the benefits of co-operative enterprise to all concerned – employees and the community – and that lay particular stress on how ‘normal’ it is to work co-operatively. Second, dedicated co-operative support structures and programmes should be established. Mainstream enterprise development agencies certainly need to be made much more aware of the important role of co-operative development in helping to fulfil their immediate mandate to create employment and wealth, as well as their relationship to other important community-wide goals, such as poverty reduction and social inclusion. A solid and continuing level of technical assistance will be required to help new and existing cooperatives to achieve their goals. Given that many co-operatives often require considerable time to establish and perfect a co-operative management system, special training and mentoring support is required to offset this initial disadvantage. For sure, also, special forms of financial support – grants and loans – are clearly required to help overcome the historic financial sector bias against the establishment of non-traditional enterprises structures. Establishing a co-operative development bank is the obvious approach to take here. Third, the legal, regulatory and taxation system should be structured to encourage the co-operative option over other traditional investor-driven enterprises. A discriminatory taxation system, such as in Italy, can help to encourage both greater reinvestment in the co-operative and the conversion of a larger number of conventional businesses into the co-operative format. This will also help co-operatives compete against those informal sector competitors who choose to hide from the authorities and engage in anti-social hiring employment practises (low pay, ‘hire and fire’ policies, poor working conditions, etc.). Common ownership of co-operative assets should also be legislated for, as opposed to individual ownership, in order to encourage re-investment and grow successful co-operatives across generations. Fourth, government procurement policies can be used to offer ‘starter contracts’ to new co-operatives and also just to provide a better quality service for the public in the longer term. Fifth, secondary cooperatives that facilitate market access for groups of small-scale farmers, independent artisans and other producers, should be targeted for special support as a way of promoting economic development from the ‘bottom up’. 5.7. Supporting Local Clusters, Sub-contracting and Networks Involving SMEs The establishment of local clusters, networks and sub-contracting chains involving small enterprises has been important to the success of virtually all of the historical episodes of post-war and post-crisis reconstruction and development, particularly with regard to economies of scale, reduced transactions costs and promoting technology diffusion. In the Italian experience, this was the ‘Industrial District’ model (Brusco, 1986), while in post-war Japan and Germany it was the emergence 141

MILFORD BATEMAN of strong local sub-contracting chains involving small and large enterprises. Meyanathan (1994) points out that local inter-enterprise linkages have also flourished in East Asia. The local state has played an important role in both creating the background conditions that provide the most propitious environment for clusters, sub-contracting and networks, as well as actually helping to form them directly. The local state can thus play an important role in promoting new entry into sectors where clusters, networks and local subcontracting chains may well emerge, as well as promoting the growth of those links that have spontaneously emerged. First, special forms of financial support for inter-enterprise linkage establishment and growth must be established at the local level. Since inter-enterprise structures rarely prove their effectiveness (i.e., are rarely profit-generating) in the short term, Bateman et al (1998) advocate the use of special forms of affordable finance and technical support to make them attractive propositions to the many enterprises desperately struggling to survive on a day-to-day basis. Second, it is possible to establish local information and ‘marriage-broking’ functions that bring potential partners together. Many potential partners are unaware of what can be achieved and with whom they might be able to achieve it with. Bringing potential partners together, assisting them with problem solving and promoting a culture of cooperation are all-important activities. Third, there should be support for local business and technical associations that might lead on to concrete linkages. Inter alia, such associations have a track record of being the seedbed for many interenterprise links, and so they should be tapped for the potential they contain. Fourth, greater provision of common services and forms of business accommodation (e.g., incubators) to promote cluster development may be needed. Bringing potential partners together physically is an important way of identifying and then nurturing potentially efficient links. 6. STRONG LOCAL ACTION TO PROMOTE EQUITY, EDUCATION, FAIRNESS AND SOCIAL COHESION Poverty alleviation and social inclusion are crucially important to the reconstruction and development process and community building in South-East Europe. When some sections of society are seen to benefit more than others from reconstruction and development, the bonds that link communities together – social capital – are often decisively broken. Motivation and commitment collapse and each section of society ends up pushing for the immediate redistribution of the existing wealth and assets (rent-seeking), rather than focusing upon the longer term local wealth creation process.25 This has, for sure, been the fate of many of the states in post-communist Eastern Europe. But we can contrast the situation there with that in the Indian state of Kerala, which Parayil (2000) shows has managed to achieve comparatively very high levels of social inclusion and living standards through the auspices of a very active and politically committed local state. Thus, to increase motivation and popular identification with basic reconstruction and development objectives 25

The best example of this is probably Russia since 1991 (see Stiglitz, 2002).

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LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE inevitably means having to ensure high levels of equality, education and social welfare provision. In South-East Europe, the links within the community are not entirely broken, but they are severely strained. The local state thus has a crucially important role to play in promoting the new programmes that will underpin the notion of community and inclusion. Note that this is not the same as extending the institutions of civil society into the space conventionally inhabited by the local state (see above), which is largely related to the neo-liberal imperative of attempting to disengage the poor from activating state agency on their behalf. By far the most important of the measures to be taken by the local state, then, is to ensure the retention of the social welfare entitlements of poorer sections of the community. Social welfare programmes require local state co-ordination, economies of scale realizable through public provision, and a strong local tax base. Ensuring sustainable provision may often require the passing of many social welfare functions from the nongovernmental sector back to the local state – that is, the reverse of the current vogue in the region. These measures should be implemented alongside suitable reforms to ensure competence, value-for-money and transparency. A related imperative here is to maintain the quality of the general education system. Inter alia high levels of education are robustly linked to local participation in promoting and achieving community development goals. More immediately, high levels of education are also linked to high levels of entrepreneurship and non-farm rural business activities. 7. CONCLUSION I have argued in this chapter that local state agency should have been quite central to the reconstruction and development project that began in South-East Europe after 1991, not least because there is a wealth of experience emerging from very similar reconstruction and development contexts (including in the region itself) pointing to the efficacy, adaptability and transferability of pro-active local state-level economic development interventions. However, the neo-liberal ideology and policies imposed upon the region by the main international financial institutions effectively forbade state agency at any level, local, regional and national. At the local level across South-East Europe local state capacities have been deliberately under-funded and local government progressively stripped of any power to formulate, plan and implement policy choices on behalf of its constituents. Instead, local economic development policy has increasingly been turned over to the un-elected and unaccountable institutions of civil society for their deliberation, action and veto. Quite apart from this being thoroughly anti-democratic in a region crying out for an extension of democratic legitimacy and institutional responses (see Chandler, 1999; Kekiü, 2001), this ideology-driven local economic development approach has, as elsewhere, decisively failed in its assigned task. I argued here for consideration of an alternative policy response in South-East Europe to the neo-liberal programme of ‘dumbing down’ the local state. This is the 143

MILFORD BATEMAN Local Developmental State (LDS) approach. Of course, replicating earlier successful examples of the LDS model will not be easy: there are some historical, cultural, geographical and social specificities that preclude an easy transfer of models and experience. However, the very varied nature of the environments in which the LDS model has been able to function to date, from a destroyed post-war northern Italy to a very poor, but rapidly changing, post-communist China after 1980, strongly suggests that key aspects of the model are generalizable. But to accomplish anything concrete in South-East Europe the local state must be legitimised, reanimated, upgraded, resourced, more extensively democratised and, crucially, assigned a proactive function in the local economic development process. There will be many problems along the way. Corruption, political interference and basic inefficiency have been characteristic of all too many local governments in the region, and this is likely to remain a problem well into the future. Resource constraints are also a significant barrier. In addition, the aggressive form of economic globalisation now being imposed upon the world economy manifestly reduces the local scope for promoting sustainable economic, environmental and social policies. Perhaps proving to be most intractable, however, will be the international financial institutions and major western governments that first imposed the neo-liberal policy model on the region, and who continue to profess their belief that it is the only way to improve the lives of ordinary people. Notwithstanding, now that the populations of South-East Europe have finally acquired democratic control over the(ir) local state, this should encourage the development of their own pro-active and democratically accountable policy responses to the huge array of problems that currently exist and which were, as I have argued here, largely not of their own making. REFERENCES Addison T, Le Billon P and Murshed M S (2000) Finance in conflict and reconstruction, Institute of Development Policy and Management Working paper no 20, IDPM, Manchester. Akyuz Y (ed) East Asian Development: New Perspectives, London: Frank Cass. Akyuz Y, Chang H-J, Kozul-Wright R (1999) New Perspectives on East Asian Development, in Akyuz Y (ed) (op cit). Amsden A, Kochanowicz J, Taylor L (1994), The market meets its match: restructuring the economies of Eastern Europe, Harvard University Press, Cambridge, Mass Andor L and Summers M (1998) Market failure: Eastern Europe’s “Economic Miracle”, Pluto Press, London. Balcerowicz L (1995) Socialism, Capitalism, Transformation, Budapest: Central European University Press. Barraclough S (1991) Migrations and Development in Rural Latin America, Economic and Industrial Democracy, Vol 12.

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LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE Bateman M (1993) Local economic strategies and new small firm entry in a Labour-Managed economy: the case of Yugoslavia 1950-1990, unpublished PhD thesis, University of Bradford, UK. Bateman M (1995) “Industrial Restructuring and local SME development: the case for a "hands on" approach” in: Z Frohlich, S Malekovic, J Padjen, M Polic and S Svaljek (eds), Industrial Restructuring and its impact on regional development, Zagreb: CSRA Publishers. Bateman M (2000a) Small enterprise development in the Yugoslav successor states: institutions and institutional development in a post-war environment, MOCTMOST, Vol 10, No 2. Bateman M (2000b) Neo-liberalism, SME development and the role of Business Support Centres in the transition economies of Central and Eastern Europe, Small Business Economics, Vol 14, No 4. Bateman M (2003) “Promoting “New Wave” Micro-Finance Institutions as Poverty Reduction and Local Economic Development Policy in South-East Europe: A Short Critique”, Collection of Economic Papers of the Economics Faculty of Sarajevo, Vol XXIII, Sarajevo; University of Sarajevo. Bateman M, Vehovec M and Kastelan-Mrak M (1998) Industrial restructuring and the development of small enterprise clusters: the case of the shipbuilding industry in the Primorsko-Goranska county of Croatia, Journal of Applied Management Studies, Vol 7, No 1. Best M (1990) The New Competition: Institutions of Industrial Restructuring, Polity Press, Cambridge. Blecher M (1991) Development state, entrepreneurial state: The political economy of Socialist reform in Xinju Municipality and Guanghan County, in White G (ed) The Chinese State in the era of economic reform: the road to crisis, MacMillan, Basingstoke. Birchall J (1997) The International Co-operative Movement, Manchester University press, Manchester Braun H-J (1990) The German Economy in the Twentieth century: the German Reich and the Federal Republic, Routledge, London. Brusco S (1986) Small firms and Industrial Districts: The Experience of Italy, in Keeble D and Weber E (eds) New Firms and Regional Development in Europe, Croom Helm, London. Casaburi G (1999) Dynamic agroindustrial clusters: The political economy of competitive sectors in Argentina and Chile, MacMillan Press, London. Chandler D (1999) Bosnia: Faking democracy after Dayton, London: Pluto Press. Chang H-J (1994) The Political Economy of Industrial Policy, London: MacMillan. Chang H-J (2002) Kicking away the ladder: Development strategy in historical perspective, London: Anthem Press.

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MILFORD BATEMAN Chang H-J and Kozul-Wright R (1993) Organising development: comparing the national systems of entrepreneurship in Sweden and South Korea, Journal of Development Studies, 30(3): 859-891. Cooke P and Morgan K (1998) The Associational Economy, Oxford: Oxford University Press. ýauševiü F, (2002) “The effects of financial deregulation in Bosnia and Herzegovina – 1997-2001” in: Jubilant Collection of Papers of the Economics Faculty of Sarajevo, XXII, Sarajevo: University of Sarajevo. Daianu D (2001) “Transition failures: How does Southeast Europe fit in?” in: Veremis T and Daianu D (eds) Balkan Reconstruction, London: Frank Cass. Duckett J (1998) The Entrepreneurial State in China, London: Routledge. EC (2000) An Evaluation of Phare SME Programmes, Evaluation Unit of the Common Service for External Relations, European Commission, Brussels. EU-World Bank (1999) Bosnia and Herzegovina: 1996-1998 Lessons and accomplishments: Review of the priority reconstruction and recovery program and Looking ahead towards sustainable economic development, a report prepared for the May 1999 Donors conference co-hosted by the European Commission and the World Bank, Brussels. Faux J and Mishel L (2000) Inequality and the Global economy, in Hutton W and Giddens A (eds) On the edge: Living with Global Capitalism, Jonathan Cape, London. Fine B (2001) Social capital versus social theory, London: Routledge. Friedman D (1988) The Misunderstood Miracle: Industrial development and political change in Japan, Ithaca NY: Cornell University Press. Gowan P (1995) Neo-liberal theory and practice for Eastern Europe, New Left Review, 1213, p 3-60. Grootaert C (1997) ‘Social capital: “The Missing Link”’, in: Expanding the measure of Wealth: Indicators of Environmentally Sustainable Development, Washington DC: World Bank. Grundner P and Komar M (1999) Redevelopment of the local credit funds for small businesses in Slovenia, Report commissioned by the OECD-LEED Programme, Vienna: ÖSB-Unternehmensberatung Gesellschaft m.b.H. Harriss J (2002) Depoliticizing development: The World Bank and Social Capital, London: Anthem Press. Haughton J (1998) The Reconstruction of War-Torn Economies, (Technical paper) Harvard Institute for International Development, June. Horvat B (1976) The Yugoslav Economic System, M E Sharpe, New York. Horvat B (1983) The Political Economy of Socialism, Oxford: Martin Robertson. Horvat B (2002) Kakvu Država imamo, a kakvu Država rebamo? (The sort of state we have, the sort of state we need?), Zagreb, Croatia: Prometj. Hutton W (2002) The World We’re In, London: Little, Brown. Johnson C (1982) MITI and the Japanese Miracle, Stanford CA: Stanford University Press. 146

LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE Johnson S and Loveman G (1995) Starting over in Eastern Europe: Entrepreneurship and economic renewal, Boston, Mass: Harvard Business School Press. Kekiü L (2001) “Aid to the Balkans: Addicts and pushers” in: Veremis T and Daianu D (eds) Balkan Reconstruction, London: Frank Cass. Kowalski R and Kaminski R (1999) Business Development Services in Poland reaching rural areas, Small Enterprise Development, Vol 10, No 3. Lall S (1996) Learning from the Asian Tigers: Studies in Technology and Industrial Policy, London: MacMillan Press. Leys C (2001) Market-driven politics: Neo-liberal democracy and the public interest, London: Verso. Meyanathan S (1994), (ed) Industrial structures and the development of small and medium enterprise linkages, EDI Seminar Series, World Bank, Washington DC. Meyer-Stamer J and Wältring F (2000) Behind the myth of the Mittelstand economy: The institutional environment supporting Small and Medium-Sized Enterprises in Germany, INEF Report 46/2000, Institute for Development and Peace at the Gerhard-Mercator-University Duisburg, Germany. Milanovic B (1998) Income, Inequality, and Poverty during the transition from Planned to Market Economy, Washington DC: World Bank. MITI (1980) Vision of the Small and Medium Enterprises and their policy direction in the 1980s, Document B1-43, Tokyo: MITI. Nishiguchi T (1994) Strategic Industrial sourcing: the Japanese advantage, Oxford: Oxford University Press. North D (1990) Institutions, Institutional Change and Economic Performance, Cambridge: Cambridge University Press. O’Connor D (1998) Rural Industrial Development in Vietnam and China: A Study in contrasts, MOCT-MOST, Vol 8, pp7-43. Otero M and Rhyne E (1994) The new world of micro-enterprise finance: building healthy institutions for the poor, London: IT Publications. Oxfam (1996) A case for reform: fifty years of the IMF and World Bank, Oxford: Oxfam Policy Department, Oxfam. Parayil G (2000) (ed) Kerala: The Development Experience – Reflections on sustainability and replicability, London: Zed Books. Peluffo P and Giacche V (1997) Soria del Mediocredito Centrale (History of the Medium Term Credit Bank), Milan: Editori Laterza. Petrin T (1995) Industrial policy supporting economic transition in CentralEastern Europe: lessons from Slovenia, EDI Working paper no 95-07, Economic Development Institute of the World Bank, Washington DC: World Bank. Pieper U and Taylor L (1998) The revival of the liberal creed: The IMF, the World Bank, and inequality in a globalised world, CEPA Working paper series 1, No 4. Center for Economic Policy Analysis, New York: New School for Social Research.

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MILFORD BATEMAN Polanyi K (1957) (originally 1944) The Great Transformation, Beacon Press: Boston, Ma. Purushotham P (1998) China’s Township enterprises, Small Enterprise Development, Vol 9 (1) March. Putnam R (1993) Making democracy work: Civic traditions in modern Italy, (Princeton, Princeton University Press). Pyke F (1994) Small firms, technical services and inter-firm co-operation, Research Series No 99, International Institute for Labour Studies, Geneva: ILO. Robinson M (2001) The Microfinance Revolution: Sustainable Finance for the Poor, Washington DC: World Bank. Sachs J (1990) What is to be done? The Economist, January 13 SAPRIN (Structural Adjustment Participatory Reviews International Network) (2001) The policy roots of economic crisis and poverty, Washington DC: SAPRIN. Sevic Z (1999) Entrepreneurship and SME development in transition economies: Is there a case for “community development banking”? paper presented at the Third International Conference on “Enterprise in Transition”, Split, May 2729, 1999. Standing G (2002) “The Babble of euphemisms: re-embedding social protection in ‘transformed’ labour markets”, in: Rainnie A, Smith A and Swain A (2002) (Eds) Work-Employment and Transition, London: Routledge. Standing G and Vaughn-Whitehead D (1995) What role for minimum wages in Central and Eastern Europe? in: ILO, From protection to destitution, ILO, Geneva. Stiglitz J (1999) Whither Reform? Ten years of the Transition, paper presented at the Annual Bank Conference on Development Economics, Washington DC, April 28-30, 1999. Stiglitz J (2002) Globalisation and its discontents, London: Allen Lane. Stojanov D (2000) “Bosnia-Herzegovina since 19995: Transition and reconstruction of the economy” in: Papiü Z (ed) International support policies to South-East European Countries: Lessons (not) learned in B-H, Muller: Sarajevo. UNICEF (1993) Poverty and inequality in Latin America, UNICEF, New York: United Nations. UNDP (1999) Human Development Report for Central and Eastern Europe and the CIS, Bratislava: UNDP. UNDP (2002) Human Development Report – Bosnia and Herzegovina, Sarajevo: UNDP. Wade R (1982) Irrigation and agricultural politics in South Korea, Boulder, Col: Westview Press, Boulder. Wade R (1983) South Korea’s agricultural development: the myth of the passive state, Pacific Viewpoint, Vol 24, No1. Wade R (1990) Governing the Market, Princeton NJ: Princeton University Press. Wade R (1996) Japan, the World Bank, and the art of paradigm maintenance: The East Asian Miracle in Political Perspective, New Left Review, 217, pp 3-36.

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LOCAL ECONOMIC AND COMMUNITY DEVELOPMENT AS AN ASPECT OF THE RECONSTRUCTION OF SOUTH-EAST EUROPE Waterston A (1962) Planning in Yugoslavia: Organisation and Implementation, The Economic Development Institute, International Bank for Reconstruction and Development, Baltimore: Johns Hopkins Press. Weiss L (1988) Creating Capitalism: The state and small business since 1945, Blackwell, Oxford. Weiss L (1998) The myth of the powerless state: governing the economy in the global era, Polity Press, Cambridge, UK. Whang I-J (1981) Management of rural change in Korea: The Saemaul Undong, Korean Institute of Social Sciences Series No 5, Seoul: Seoul National University Press. Woodward S (1995) Balkan tragedy: Chaos and dissolution after the cold war, Washington DC: Brookings Institution. World Bank (1981) Yugoslavia: Small-Scale Industry and Industrial Policy, Report No. 3452-YU, Washington DC: World Bank. World Bank (1997) Bosnia and Herzegovina: From recovery to sustainable growth, Washington DC: World Bank. World Bank (1999) Lessons for rebuilding South Eastern Europe: The BosniaHerzegovina experience, Washington DC: World Bank. World Bank (2000) The road to stability and prosperity in South Eastern Europe, Washington DC: World Bank. World Bank, European Commission and EBRD (1996) Bosnia and Herzegovina: Towards economic recovery, Discussion paper no 1, prepared for the Second Donors Conference. World Bank and European Union (2001) Federal Republic of Yugoslavia: Breaking with the past: The Path to Stability and Growth, Vol I, Brussels: World Bank and European Union. Young B (1999) Nothing from nothing is nothing: privatisation, price liberalisation and poverty in the Yugoslav successor states, in Schierup C-U (ed) Scramble for the Balkans: Nationalism, Globalism and the political economy of reconstruction, MacMillan Press, Basingstoke. Želinski-Matunec S (2000) SME’s crediting in co-operation with local government unit: Croatian experience, paper presented at the International conference “Financing of small and medium enterprises” Bled, Slovenia, 10-13 October 2000.

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PART II THEORETICAL JUSTIFICATIONS

CONCEPTUAL ISSUES PERTAINING TO AUTONOMY TERRITORIAL AUTONOMY: PERMANENT SOLUTION OR STEP 1 TOWARD SECESSION? Hurst Hannum 1. INTRODUCTION As the present volume and the conference on which it is based suggest, the concept of ‘autonomy’ has become widely seen as an effective means of implementing minority rights. However, while it is a topic that has been widely discussed in the past decade, autonomy as a means of protecting human rights is, in fact, a relatively recent phenomenon. It was not until the late 1980s that it became apparent to most observers that a purely individualistic approach to human rights was insufficient to respond to the demands of ethnic minorities and other groups for greater recognition of and protection for their culture and, in many cases, greater political authority over their own affairs. However, neither international human rights law nor the thencontemporary understanding of ‘self-determination’ addressed these issues; human rights could be asserted only by individuals, and self-determination in the form of independence was available only to colonial territories. Nonetheless, bringing together the strands of human rights, attempts to promote the rights of minorities and indigenous peoples, and movements to foster fuller participation in both economic and political development activities, I argued in a book first published in 1990 that ‘a new principle of international law can be discerned in the interstices of contemporary definitions of sovereignty, selfdetermination, and the human rights of individuals and groups’.2 Although it is doubtful that this ‘right to autonomy’ has yet achieved the status of international law, it has become the solution of choice for many of those engaged in attempting to resolve conflicts between territorially based ethnic groups around the world. Since the end of the Cold War, minority rights and, to a lesser extent, autonomy have been at the centre of human rights discussions within Europe and in many other parts of the world. 1

Copyright Hurst Hannum 2001. H. Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia, PA, University of Pennsylvania Press, 1990) p. 473. 2

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HURST HANNUM Autonomy has been proposed or adopted as a solution in countries as diverse as Finland, Norway, Sweden, Belgium, Spain, Denmark, Hungary, Romania, Yugoslavia, Bosnia and Herzegovina, Italy, United Kingdom, Turkey, Iraq, India, China, Sri Lanka, Papua New Guinea, Cyprus, the Philippines, Bangladesh, Russia, Georgia, Azerbaijan, Sudan, Senegal, Canada, United States, Mexico, Brazil, Nicaragua, and Panama − and this is certainly not an exhaustive list. Why has this particular form of conflict resolution acquired such popularity? 2. ADVANTAGES There are many advantages to ‘autonomy’ as a solution to ethnic conflicts. Perhaps the most obvious is the flexibility of the term, which is not a term of art under international law and may therefore encompass a wide range of constitutional relationships. Thus, the ‘highest’ degree of autonomy accorded by China to Hong Kong includes the retention by Hong Kong of a wide range of political, judicial, and economic powers, from a separate legislature and judiciary to a fully independent financial authority. Autonomous entities in Bosnia and Herzegovina also have a broad range of independent authority, although autonomy in that instance was designed to maintain the facade of a unified state, rather than to integrate a new territory into an existing state. Autonomy in Belgium and the Åland Islands is expressed through territorially based powers over language, education, culture, and, in the latter case, residence. Autonomy also may be a means of responding successfully to concerns about minority rights, particularly when minorities are territorially concentrated in significant numbers. Territorial autonomy is mentioned as a possible option in the 1990 CSCE Copenhagen Document, although its formulation is fairly minimal and reflects the sensitive nature of such proposals.3 In 1993, the Council of Europe’s Parliamentary Assembly more specifically recommended, ‘[i]n the regions where they are in a majority the persons belonging to a national minority shall have the right to have at their disposal appropriate local or autonomous authorities or to have a special status, matching the specific historical and territorial situation and in accordance with the domestic legislation of the state’.4 Territorial autonomy is discussed in some detail in the Lund Recommendations on Effective Participation by National Minorities in Political Life, which were adopted in 1999 in conjunction with the office of the OSCE’s High Commissioner

3

See Document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Cooperation in Europe, adopted 29 June 1990, reprinted in 29 Int'l Legal Materials (1990) 1305. In paragraph 35 of the document, the participating states merely ‘note’ efforts to promote the identity of national minorities through the establishment of ‘local or autonomous administrations, corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned’. 4 Recommendation 1201 (1993) on an additional protocol on the rights of national minorities to the European Convention on Human Rights, Annex, Article 11.

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TERRITORIAL AUTONOMY: PERMANENT SOLUTION OR STEP TOWARD SECESSION? on National Minorities.5 Under the heading of ‘self-government’, both non-territorial and territorial arrangements are discussed. Functions which might fall under the latter include education, culture, use of minority language, environment, local planning, natural resources, economic development, local policing functions, and housing, health, and other social services.6 Noting that all democracies have arrangements for governance at different territorial levels, the Recommendations urge states to ‘favourably consider’ territorial arrangements ‘where it would improve the opportunities of minorities to exercise authority over matters affecting them’.7 The Recommendations also specify that territorial self-governance institutions should be based on democratic principles rather than ethnic criteria and should respect the human rights of all persons within their jurisdiction, including minorities.8 A third advantage of ‘autonomy’ solutions is that, by definition, they maintain the territorial integrity of existing states. However powerful they may be, autonomous units are not sovereign on the international level and remain ultimately subject in varying degrees to the jurisdiction of the state in which they are found. This is obviously attractive to the states concerned, as well as to outsiders who fear the destabilizing effect of the proliferation of ever smaller, ethnically defined states. Autonomy thus can be seen as contributing to the stability of the existing international order. A strong commitment to autonomy solutions within states also obviates the need to develop criteria for secession, since secession (except by mutual consent) is simply not available as an internationally sanctioned outcome. This is the approach taken by the international community thus far in Kosovo, for example – although the situation there is far from resolved, and division of the Federal Republic of Yugoslavia by consent may yet occur. In a more theoretical sense, as the nature of the state changes and its role as an economic mediator between individuals and transnational actors wanes, creative autonomy arrangements may provide a more appropriate means of reflecting more accurately real power relationships. Complex autonomy arrangements diminish the traditional role of the state as the holder of all important rights and deemphasize the relevance of state boundaries. In this manner, they may offer a realistic and pragmatic response to particular situations, even though the result may confuse international lawyers and foreign relation experts. This approach can be seen in the commitment of the European Union to the principle of ‘subsidiarity’ and the increasing role played by sub-state or cross-state regions in both economic and political affairs.

5

Foundation on Inter-Ethnic Relations (June 1999) The Lund Recommendations on the Effective Participation of National Minorities in Public Life & Explanatory Note. The Hague: Foundation on Inter-Ethnic Relations. 6 Ibid., para. 20. 7 Ibid., para. 19. 8 Ibid., paras. 16, 21.

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HURST HANNUM Since autonomy is potentially responsive to both majority concerns – preserving the integrity of the state – and minority demands – exercising a meaningful degree of self-government – it is often seen by outside mediators as inherently feasible politically and therefore useful as a means of halting conflict. It provides an obvious compromise solution, even if its precise definition is uncertain. Promoting autonomy also permits outsiders to be perceived as maintaining an impartial position between the minority and the central government, since autonomy rarely responds entirely to the wishes of either side. 3. DISADVANTAGES Perhaps inevitably, each of the advantages noted above has a corresponding disadvantage. For instance, what may appear to one observer as desirable flexibility may lead others to criticize the very vagueness of autonomy as unlikely to encourage a meaningful dialogue. Since neither minorities nor governments understand exactly what autonomy comprises, autonomy itself may end up being little more than a slogan, used by one side or the other to substitute for other, equally vague, slogans, such as sovereignty or self-determination. Demands for autonomy may therefore make it more difficult to identify the actual interests of the parties, such as linguistic or educational rights or a greater share in economic life. While autonomy may respond to assertions for greater rights by an ethnic or other minority, the political elements contained within most autonomy regimes go far beyond those traditionally considered to be essential to protect minority cultures. Minority rights are still understood as responding primarily to those elements which define minorities themselves, i.e., the need to retain control over and develop their language and culture, practice their own religion, and influence or control the education of their children. In a word, minority rights are about minority identity, not (until recently) about greater political power. If minority rights become increasingly viewed as encompassing a right to territorial autonomy, this could encourage greater demands by aggrieved (or greedy) groups that go well beyond protection of minority identity. Territorial autonomy, when exercised by an ethnically distinct minority within the country as a whole, is intended to respond primarily to group demands rather than to individual rights to equality and non-discrimination. However, many states are wary of subordinating individual rights to the purported needs of the group. The countervailing position to the argument that autonomy is a means of preserving territorial integrity questions whether a slavish devotion to territorial integrity remains appropriate in today’s world. Why should we assume that the frontiers that existed at the dawn of a new millennium should be maintained forever? Aren't other values – preserving cultural identity, increasing meaningful and effective participation – equally important? An absolute commitment to preserving current borders ignores the history of Europe, in which border changes have played a notable part until the mid-twentieth century, as well as the more recent changes that have occurred in the former Soviet 156

TERRITORIAL AUTONOMY: PERMANENT SOLUTION OR STEP TOWARD SECESSION? Union, Czechoslovakia, Yugoslavia, and Ethiopia. Such a state-centric position discourages necessary thinking about what the criteria should be for statehood and secession, precisely when such thinking should be in the forefront of international attempts to deal with internal ethnic conflicts. Continuing to deify sovereign statehood and static frontiers as the only desirable goals reduces the political and economic complexity of the twenty-first century to simplistic slogans. It ignores the deliberately ‘soft’ frontiers being introduced by the European Union and other supra-state organizations, which are seen by many as the key to resolving regional conflicts in, e.g., the Balkans, Caucasus, and even central or south Asia. If autonomy is seen by both parties to ethnic or secessionist conflicts as an undesirable compromise, it may be unlikely to resolve those conflicts in the long run despite its attractiveness to potential mediators. Secessionist groups see acceptance of an autonomy arrangement as a defeat, since by definition their goal is independence. Even where autonomy may ultimately be accepted (or desired), it is generally seen as valuable only if it is as ‘high’ or broad as possible, thus substituting a demand for greater political-economic power for what may have originally been complaints about discrimination or other violations of minority rights. Minority rights themselves rapidly become viewed as woefully insufficient, as evidenced by claims from, e.g., Abkhazia, Chechnya, Nagorno-Karabakh, Kosovo, Bougainville, Aceh, Kashmir, and northern Cyprus. States, on the other hand, resist wide-ranging autonomy, which may be seen as removing a part of the country from the effective control of the central government and psychologically dividing, rather than integrating, the country’s population. In the former Yugoslavia, neither the Bosnian nor Serbian/Yugoslav governments favour the de facto partition and quasi-independence that have been given to the Republika Srpska and Kosovo, respectively, and which will be enforced for the foreseeable future by foreign occupation. Indeed, the role of NATO in Kosovo seems to be to prevent Albanians from achieving independence and to prevent Yugoslavia from controlling its own territory; it does not seem likely that such a ‘lose-lose’ scenario will stand the test of time. Finally, the precedent of Yugoslavia, in particular, may give rise to a perception that autonomous or federal states may be more vulnerable to secessionist pressures in the future than are unitary states. Although it adopted a somewhat more nuanced position in a later opinion, this perception was reinforced by language in a decision of the Badinter Commission, which applied the concept of uti possidetis to the internal boundaries of Yugoslavia.9 Such a distinction in the international personality of a state, based on its internal constitutional arrangements, is unheard of in international law, and it is likely to discourage the kind of effective devolution of power that may well offer a solution to many ethnic conflicts within states.10 9

Conference on Yugoslavia Arbitration Commission, Opinion No. 2 (1 January 1992), reprinted in 13 Int'l Legal Materials (1992) 1497. 10 See generally H. Hannum, ‘self-Determination, Yugoslavia, and Europe: Old Wine in New Bottles?’, 3 Transnational Law & Contemporary Problems (1993) pp. 57−69.

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HURST HANNUM 4. THE PROPER ROLE OF AUTONOMY The counterbalancing or even contradictory arguments sketched briefly above suggest that autonomy should be seen neither as a panacea nor a provocation. Autonomy will not necessarily lead to a permanent solution which will contain all ethnic tensions, nor will it inevitably encourage demands for ever greater political power and eventually independence. Instead, autonomy is simply one tool in the arsenal of constitutional drafters, politicians, and diplomats that must be suited to the particular task at hand. In brief, autonomy is a means, not an end. In every case, whether or not autonomy is an appropriate tool depends on a careful identification of the goal(s) to be achieved, not all of which may be mutually compatible. If the overriding goal is to end violent conflict, proposing autonomy as a solution will not always be a good idea. By freezing incompatible demands, one may only postpone later conflict, leaving displaced or ‘cleansed’ persons without redress. Some divisions within states are sufficiently deep that ‘giving war a chance’ and allowing a definitive settlement to occur may be the best assurance that the conflict is unlikely to recur.11 Barbara Walter has argued that intervening in a civil war before one side achieves victory almost always requires the presence of armed peacekeepers to enforce the resulting stalemate, and the willingness of the ‘international community’ to make such a commitment seems to be eroding rather than growing stronger.12 While it is true that autonomy may be a useful tool if the international community decides to maintain territorial integrity as a jus cogens norm, such a position begs the question of when we might be morally and politically justified in supporting a right to secession as an appropriate solution in certain circumstances. I would argue that such a right should be supported, but only under very narrow conditions. These conditions might include situations where secession is the only plausible response to continuing, massive, discriminatory human rights violations (arguably the case for Kurds in Iraq and Turkey in the 1980s and Tibetans in China during the Cultural Revolution) or where secession might be employed retroactively as a means of punishing egregious violations of humanitarian law (as occurred in Kosovo). In such cases, any internationally recognized right to secession would depend on the actions of the recognized government, not merely on the wishes of an ethnic or other minority. But where the government of a state refuses to ease repression, recognize legitimate minority claims for respect for their identity, or conduct an anti-guerrilla or anti-terrorist campaign in conformity with the basic laws of armed conflict, international support for secession may be appropriate. Even when secession cannot be supported as a matter of law, the international community should consider more fully whether applying the concept of uti possidetis to internal borders is likely to discourage or exacerbate violence. In the 11

See E. Luttwak, ‘Give War a Chance’, 78:2 Foreign Affairs (1999) pp. 36−44. See generally B.F. Walter, Committing to Peace: The Successful Settlement of Civil Wars (Princeton and Oxford, Princeton University Press, 2002). 12

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TERRITORIAL AUTONOMY: PERMANENT SOLUTION OR STEP TOWARD SECESSION? former Yugoslavia, for example, the West’s insistence on keeping ‘trapped’ Serbs within Croatia and Bosnia and Herzegovina (and trapped Croats within the latter) may have actually contributed to continuation of the violence, since peaceful means of redrawing borders seem to have been excluded. As purportedly stated by one participant in the conflict, ‘Why should I be a minority in your state when you can be a minority in mine?’ Plebiscites and referenda are not always desirable or even possible, but some attention should be paid to the wishes of individuals caught in transitional states whose borders are in the process of changing. If the goal of the international community is to reward those who fight by the rules and punish those who do not, assuming that autonomy is an appropriate solution (as opposed to lesser minority rights protection) may unfairly strike a middle course where the ‘bad guys’ belong to the minority. Should we, for example, reward terrorist violence by members of aggrieved groups, even if the government offers reasonable responses to their demands? Once violence occurs, should we require fundamental constitutional changes in a state, rather than merely the guarantee of recognized rights (including minority rights) to all, without discrimination? Again, perhaps the answer should depend on the actions of the respective parties in either initiating or responding to violence, not upon nebulous claims of sovereignty or ethnic self-determination. One goal upon which all could agree is that of protecting human rights, including minority rights, and promoting democracy for all those within a state. Stated differently, these norms would include the protection and promotion of minority identity and their right to effective participation in government, and certain forms of autonomy may well respond to these goals. At the same time, however, it should not be the goal of outside advocates to resolve internal debates over the disposition of political and economic power according to the outsiders' own assessment of the situation. The proper concern is rights, not policy, and fixating on autonomy as a one-size-fits-all compromise solution is unlikely to respond to the needs either of the concerned parties or the international community. In conclusion, autonomy is not a magic bullet that can resolve all conflicts, prevent violence, or guarantee political and economic development. It cannot automatically ensure social justice or bring good things to all people. Autonomy remains a useful concept, but it will be successful only where there is a sufficiently strong willingness to live together, combined with an understanding of which purposes autonomy is – and is not – likely to serve.

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THE ROLE OF AUTONOMY IN STATE-NATION DIALECTIC Johan Galtung 1. INTRODUCTION The State-Nation dialectic – with rich-poor, man-woman, USA-West-rest, Christianity-Islam (one of the major conflict formations in today’s world) – brings up the basic human need for ‘identity’. We humans derive much identity from the identification with our own kind, or group, with people who look, feel, think, talk and act like ourselves: Our own nation, with which we are familiar. My basic thesis is that people want to be governed by their own kind, even if they are unkind and even autocratic. Identity becomes a priority. Not that identification with rulers as ‘our own kind’ implies compliance. However alienation, resulting from rulers being different, if only phonetically, by accent, makes governance even more problematic. So does identification with alien leaders. The consequence of that empirical sentiment, deplorable or not, is autonomy, from being independent as a state to participation in local decision-making. But the term ‘identity politics’ is misleading: there are also issues of survival, of physical quality of life, and freedom; and the theory – right, wrong, or in the middle – that when ruled by our own kind this will all change for the better. Autonomy is a basic needs package. As basic needs are by definition non-negotiable, so is autonomy. This opens a range of possibilities, to be explored. So much about basic needs. How about human rights? The most extensive exploration, to my knowledge, is found in Zelim Skurbaty’s book entitled As If Peoples Mattered.1 The book contains a very deep and inter-disciplinary overview, giving perspective to the case studies and analysis based on the TRANSCEND experience. 2. THE DIALECTIC BETWEEN NATIONAL IDENTITY AND STATE INTEGRITY, AND THE RIGHT TO SELF-DETERMINATION With about 200 states, containing approximately 2000 nations with claims to sacred space and with memories of a sacred time, and about 20 nation-states, there is worldwide potential for 1,980 wars of independence, pitting status quo-oriented states against change-oriented nations. The ‘sacred space-sacred time’ combination, probably best understood as a secular sequel to the religious tradition of endowing space and time points with sacredness, is then used to define ‘nation’ as distinct 1

The Hague, Kluwer, 2000, 498pp.; see my review in Nordic Journal of International Law, 2001, pp. 263–65.

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JOHAN GALTUNG from ‘culture’, defined in terms of symbols, like language, religion, and myths. A nation is or has a culture, but a culture is not necessarily a nation. Cultures do not have claims on points, even regions, in space and time; space being the most important since that is where territorial conflict arises. Territory is tied to the sovereignty of states and states to the monopoly of power. States come and go. But nations remain, a major source of human identity, often crazy, often violent, because of the psychological energies generated. About 180 states are multi-national, almost all dominated by one nation, often because of historical patterns of conquest. Expansionist nations, many of them European-Christian or Arab-Muslim, have come to dominate others with similar patterns among themselves before that uninvited arrival of the abrahamic Occident in Asia, Africa, and the Americas. In the world it is difficult to identify more than one state, or country, that is both multi-national and symmetrical. The name of that country is, of course, Switzerland, possibly because of the high level of autonomy given to the non-Germans, and low level of conquest. The word ‘sacred’ is used to inform us that nationhood is serious, and not a matter to be psychologized away as prejudicial and discriminatory, even if these two patterns of attitude and behaviour play important roles. If two or more nations lay claim to the same points in space, then we have a genuine incompatibility/contradiction/problem, or whatever we choose to call it, even if their relationship is symmetrical, and egalitarian. They may simply not want to live too close to one another; there are signs of that also in Switzerland. The problem is unlikely to go away by preaching ‘tolerance’, meaning tolerating the close presence of the ‘Other’. Even equality may not help, or only help in the long run. Individuals have their private sphere; nations may have the same and yet be hospitable to guests that do not overstay their welcome. Correspondingly, a nation divided among two or more states may be filled with a longing to come together. Their separation by the structural violence (often supported by direct violence) of forcing apart those who want to live together is similar to the structural violence (also supported by direct violence) of forcing together those who want to live apart. We may regret that people, like Koreans, and the inhabitants of Bosnia, do not like to be forced apart, or forced together, but we may come closer to a solution by acknowledging and deploring the structural violence (and the direct violence behind it) and trying to do something about it. To develop patterns of conflict transformation by peaceful means for this ubiquitous conflict, the state/nation interface is a top global priority to avoid war. Obviously, conflict arenas like the former Soviet Union, former Yugoslavia, Northern Ireland, and the Basque Country inform us that we have not been good at developing these patterns. Too much violence too much oppression, and too much suffering has gone on. As we know only too well today2, many of these nationalistic feelings came out in the open when the Pandora’s box of the Cold War was pried open. Those 2

The time reference here is the beginning of 2002.

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THE ROLE OF AUTONOMY IN THE STATE-NATION DIALECTIC uninformed by history tried to believe that they were created by that event. They were not. Most of these feelings and tensions are age-old, but had been suppressed by a socialism convinced that under a unified working class, with the means of production socialized, national struggle would disappear as a major social force, only surviving as a relic artificially kept alive by other feudal relics; clerics, nobility and bourgeoisie. They were wrong, and stimulated nationalism by placing taboos on any manifestation beyond arts and language. When they then went about reconstructing their societies after the Cold War they made the same mistake, guided by a liberalism convinced that under a unified nation, with power democratised and the market privatised, class struggle would disappear as major social force and only survive as a relic artificially kept alive by relics like old communists and nostalgic people. They are also wrong. The question then is, whether, and under what circumstance and to what extent, the right to self-determination can serve as a mechanism for conflict resolution, or at least transformation. Ideally it might look like this: any nation living on the territory of a state it views, rightly or wrongly, as a prison of nations organizes a plebiscite for its nationals, invites observers from the ‘international community’ to supervise the plebiscite, and if the majority exceeds some (fairly high) floor (say, 2/3, or 3/4, or 4/5) declares that the national self has determined the right to their own state, meaning to their own territory protected by their own power monopoly. In other words a new state is born. What guidance do we get from the International Bill of Human Rights? Article 1 in the 1966 International Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights, reads (also see UN Charter, 1(2), 73): 1) All peoples have a right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2) All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

However, independence is not mentioned. Moreover, this collective human right is not treated like an individual right. Whereas the right of assembly, or free speech, can be practiced right away, the right of self-determination is conditional on the right being recognized. By whom? By the state having that nation in its midst? Like a slave owner recognizing the right of a slave to freedom? Or, by certain big powers like US/UK, with a strong international law tradition and a keen sense of the precedents that might arise from any recognition of the right to self-determination? Or, by the International Court of Justice, like in the Western Sahara Case (1975 ICJ Rep 12), making self-determination the overriding principle, as opposed to the Eastern Greenland Case, 1933, viewing the case as a conflict between two colonizing countries, Denmark and Norway? Is this really an intrinsic right, or is it 163

JOHAN GALTUNG conditional, like the ‘right’ to conscientious objection? If so, are we only talking about some convenient, Wilsonian, post World War I rhetoric for dismantling the defeated and dying Habsburg and Ottoman empires; or post World War II rhetoric for the administration of ending a colonization that should never have been there in the first place? Some of the reasons for this probably lie in Article 1(2), ‘freely dispose of their natural wealth and resources’ and ‘a people may /not/ be deprived of its own means of subsistence’. These are laudable but also very strong words, pitting the basic needs of the people against the power of the sovereign state and the corporations operating in that territory. There is at least an economic basis for the conditionality. Like the status as conscientious objector: there is a clear and present danger to the state and state logic if self-determination is recognized. But how about people logic? It can exercise the strength of freezing water in the crevice of a mountain, and of budding seeds under asphalt: difficult to contain in the long run as evidenced by, say, the American Revolution/War of Independence 1776–1812. That force goes beyond the ‘right to dispose of their natural wealth and resources’ for the satisfaction of material needs. There is a solid non-material need at stake, written ambiguously into democratic theory: not only the right to invite, and then to uninvite, the rulers to rule them, but also the right to be ruled by one’s own kind. Sovereignty over a territory is neither a necessary, nor a sufficient condition for this right to be met. If that sovereignty is not a part of the package, then we are talking about autonomy, not about statehood. (Sooner or later statehood may follow, ‘trusteeship’ being one example of a transition formula.) Autonomy, then, becomes the lower level outcome of self-determination; independence, the new-born state, being the higher level. Autonomy carries some sovereignty but not ultimate sovereignty, as the state in command still possesses the ultima ratio regis, the King’s last argument: the heavy guns. Thus the right of self-determination is not only conditional, but it can also be eroded by offering a lower level outcome, which may or may not be acceptable to the nation exercising its right to self-determination. On the other hand, however, a situation whereby any group declares itself a ‘people’ and runs away with ‘their natural wealth and resources’ is also unacceptable. The UNESCO Expert definition of ‘a people’ is in terms of racial or ethnic identity, linguistic unity, religious or ideological affinity and territorial connection. There are many groups that would fit this definition. The definition can also apply to people of power and privilege, often living in separate niches of a country. In the age of globalisation they may declare themselves ‘a people’ and convert their territorial niche into a global economy centre. The UNESCO definition is helpful, but is the broad term ‘a people’ helpful? ‘Territorial connection’ is also too soft to cover ‘nation’ as defined here. We are dealing not only with ‘connection’, but also with ‘attachment’, to the point of cultural sacredness, and to the point of juridical territorial claims.

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THE ROLE OF AUTONOMY IN THE STATE-NATION DIALECTIC The problem does not lie in definitions, however, but in what happens when two or more groups/peoples/nations have ‘attachments’, even claims, to the same territory. The relation is usually asymmetrical, between powerful and powerless. We may sympathize with powerless, suppressed and stateless Jews, Roma, and Palestinians and their right to possess territory and state, like the individual right to possess property. But the powerful may have lived there for generations, and be not only ‘connected’ but ‘attached’, and voice their claims eloquently. There is a complex dialectic not only of power, but also of rights. There may be good arguments on both sides of that dialectic. Can we cut that Gordian knot by some simple decision-making mechanism? There are three nations in a country and a referendum in one of them, N, establishes its will to secede. The other two vote against that secession. They use their majority status to impose a referendum on the whole population, proving that only a minority vote in favour of independence. Of course, this argument only restates that N has been denied the right to be ruled by its own kind. The three separate votes define the parties, or actors. But the combined vote of three nations tossed together in a country may only be a signal from an entity about to disappear. Self-determination is a right of the Self, not of the Other to exercise Other-determination. Could we recognize the ‘recognition institute’ and the two-step process, 1) recognition of the right to self-determination for N, 2) the exercise of self-determination by N? The problem is the step from recognizing the recognition to recognizing a recogniser. Neither big powers, nor their lawyers, nor the UN General Assembly, a trade union of states, nor for that matter, a trade union of nations will do: their conclusion is too linked to their own interests, and terribly predictable. Their opinion should be known but not obeyed. The search for disinterested parties, possibly the International Court of Justice, is on; but the outcome is by no means clear. And the reason may be that we are talking about absolutes, even with sacred connotations. We have indicated above that decisions in this matter cannot be made by voting; votes against sovereignty will not necessarily be respected. Are problems of national will subject to law at all? The details, yes; but the ‘Law of the land’ is not known to have been able to silence the struggle for freedom. Moreover, self-determination works like Chinese boxes. A state may be ‘a prison of nations’ and, cause violent conflict, often called ‘internal war’ even if no such thing exists in the age of intervention. But this also applies to states emerging from such conflict, giving rise to the problem of recognizing nations, within nations, within nations, etc. The principle of uti possidetis, respecting existing borders within (colonial) empires and federations like the Soviet Union and Yugoslavia (used by the International Court of Justice in the Frontiers Dispute Case, 1986, between Burkina Faso and Mali), gives too much weight to past administrative decisions. Rights to self-determination for Slovenia, Croatia and Bosnia-I-Herzegovina were recognized, but not for Serbs in Krajina/Slavonia, Serbs and Croats in Bosnia and 165

JOHAN GALTUNG Herzegovina and Albanians in Kosovo(a). The result was war and immense suffering that possibly could have been avoided had a ‘lower level’ equal right to self-determination been recognized. The conclusion so far can only be that the right to self-determination is an important collective human right. But it should not be interpreted as an automatic right to secession, independence and recognition by the inter-state community as a state, not even to a high level of autonomy within a state. The right to selfdetermination is the right of a people itself to determine its status within a state, and by implication in the world, including the option of independence and the option of maintaining the status quo. But, regardless of the decision, a right to autonomy at a low or high level is not a right to be autistic, disregarding others completely, just like the right to free speech does not imply the right to disregard the consequences of exercising that right. There is an overriding principle of responsibility. 3. THE DIALECTIC BETWEEN NATIONAL IDENTITY AND STATE INTEGRITY, AND THE DUTY TO CONFLICT TRANSFORMATION Our conclusion so far has been that the right to self-determination is necessary but not a sufficient basis for guiding the national identity vs. state integrity dialectic to outcomes that satisfy the conditions for conflict resolution: acceptability by the parties concerned, and sustainability (the outcome does not have to be propped up). There are many disciplines dealing with this, law is only one. A vast spectrum of alternative dispute resolution formulas has opened up, all of them, or so it seems, are based more on dialogue between or with the parties, and less on codified law. Whether this is a process of de lege ferenda, law in the making, or not, remains to be seen. History usually moves in cycles from the code to the search, from the cooked to the raw, le cuit et le cru, and back again. The following will be based on the experience most familiar to the present author, the TRANSCEND method, and on conflict practice with 33 cases involving states, nations and territory. Of course, this is only one kind of experience out of very many from around the world, but maybe it speaks to the conditions of some people and peoples. All of the perspectives on these conflicts have been derived from long in-the-field dialogues with many conflict parties and participants; they are not library exercises. The pattern to be explored below was not at all clear from the beginning (30−40 years ago), not even the simple typology below. It takes time and experience before patterns emerge. And there is certainly no assumption to the effect that what we have now is the final word; nothing ever is. But there is some advantage to numbers when patterns are in demand, and 33 is a good number, not very high, but high enough for some form of pattern to be present. We imagine a piece of territory, and on that territory: - ‘one state’, or ‘two or more states’; and inside them - ‘one nation’, or ‘two or more nations’ and four combinations:

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THE ROLE OF AUTONOMY IN THE STATE-NATION DIALECTIC Table 1: Number of States/Territories x Number of Nations No. of states

ONE STATE/ TERRITORY

TWO OR MORE STATES/TERRITORIES

No. of nations ONE NATION

A 20 nation-states:

B KOREA

(almost) homogeneous

THE KURDS

(almost) no diaspora

THE MAYAS

Ideal not real reality C ISRAEL/PALESTINE RHODESIA-ZIMBABWE HAWAI'I HINDU-MUSLIM SOMALIA CHINA LEBANON JAPAN-RUSSIA ECUADOR-PERU

THE SAMIS D CYPRUS NORTHERN IRELAND KASHMIR PAX PACIFICA YUGOSLAVIA a YUGOSLAVIA b SRI LANKA CAUCASUS OKINAWA THE GREAT LAKES EUSKADI GIBR/CEUTA/MELILLA AFGHANISTAN EAST-WEST a EAST-WEST b GULF a GULF b CHRISTIAN-MUSLIM TRIPARTITE EUROPE CHRISTIAN-HEATHEN

TWO OR MORE NATIONS

The reader will find the 33 conflict arenas, as indicated by national and/or geographical terms. The conflicts are over control of territory and involve nations, meaning geo-politics. For brief diagnosis-prognosis-therapy characterizations of the 33 conflicts, see the Appendix; for more see www.transcend.org. The reader will notice that there are only four ‘one nation-two or more states’ cases and nine of the ‘two or more nations-one state’; the bulk, twenty, being in the most complex category D. The classification depends on the number of states and nations in the conflict arena, and that makes for some ambiguity in the classification, but is of no great consequence. Let us now make use of the same basic typology, but this time not focus on the classification of concrete cases, but on what can be done, the possible remedies/therapies:

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JOHAN GALTUNG Table 2: The State/Nation/Territory Dialectic: Therapies No. of states No. of nations ONE NATION

TWO OR MORE

ONE STATE/TERRITORY

TWO OR MORE STATES/TERRITORIES

The classical case, now challenged by globalisation and migration, and then 1. B, C, or D; or 2. nation-absorption into super-nations; withering away of nations; 3. state-absorption into superstates; withering away of states into regions

Increasing functional sovereignty:

NATIONS 1. unitary solution, integration with -equality, symmetry -human rights -tolerance 2. autonomy 3. federation - territorial - non-territorial 4. confederation - territorial - non-territorial 5. independence 6. condominium

1. unitary solution, integration with -equality, symmetry -human rights -tolerance within states 2. autonomy, within all states 3. confederation, of autonomies or states 4. federation, of autonomies or states 5. New unitary state Creating a context with increasing regionalization: 1. associative system of states 2. confederal community of states 3. federal union of states 4. New unitary state

The table shows many options, no doubt there are more. The general point of departure is a simple assumption: The higher the number of alternatives to the awesome dichotomy of the status quo in a unitary state vs. secession-independence, the lower, ceteris paribus, the probability of violence. Since the (understandable) recognition institute often blocks the road from self-determination to independence, the nation in search of statehood may see violence as its only alternative. In no way should this imply that self-determination as a human right is given up. But the right to self-determination must be linked to a duty to conflict transformation. To secede, doing nothing to clean up the mess created, is like a spouse walking out of his/her marriage with no regard for the other party and third parties (children, in-laws, friends, neighbours), whether the person walking out is a 168

THE ROLE OF AUTONOMY IN THE STATE-NATION DIALECTIC battered, exploited wife or an egoistic, tyrannical husband (or any other combination). After violence there is more mess, and less inclination to clean it up, so the conclusion can only be to engage in conflict transformation before, not after any violence, hopefully preventing that violence. Even if self-determination is a right, like women’s right to equality, its exercise may lead to conflict. That conflict has to be transformed within the context of the human right. The conflict does not invalidate the right. But neither is that right the only consideration in the conflict. Before we proceed, let us dispense with one argument: that secession may lead to small and nonviable states. Europe has a number of small and viable states, both economically (wealth well distributed) and politically (democracies), like the ministates Liechtenstein and Andorra, and the small states Iceland and Luxembourg. The world also knows very large states whose economical and political viability can be disputed, among other reasons because they are ‘prisons of nations’. Their worry about small states is a vicarious argument. The history of city-states should be indicative; highly viable till they were absorbed by some of today’s ‘nation-states’. More problematic would be a UN with 2,000 members, but then confederations may be encouraged (like the Nordic Community) with joint delegations. Let us then combine Tables 1 and 2, applying perspectives and approaches from Table 2 to the conflict cases in Table 1. A: One nation-one state/territory. We cannot blame Herder and Fichte, whatever they said seems to have fallen on fertile soil as discussed in the first section. However, these are not eternal, essentialist truths. Other fault-lines, such as gender and class, are or could be more salient, as feminists and Marxists argue. Or faultlines may recede into the background in favour of an unstructured, amorphous mass of individuals, as post-modernists seem to think. But today nations matter, and will continue to do so for quite some time, while states probably will to a lesser extent. We have indicated that however that may be, open borders and a globalisation of the world carries migration in its wake, by push and pull. Each migrant carries a foreign culture, with claims not on niches in geographical space or land (migrants are not nations when abroad, or only after several generations like the Northern Ireland Protestants), but on niches in cultural space. Over time this may lead to B, C or D type problems. But then something else may happen, also involving countries of origin: - Nation-absorption; over time they all join a super-nation which has been the case for some time in the Nordic countries, linked to heavy intra-Nordic migration, and to the EU countries. It may take generations, even centuries for the statements ‘I am Nordic’, or ‘I am European’ to stick. The experience with ‘jesam jugoslav’ and ‘sovjetskij tchelovjek’ indicates that it cannot be enforced. - State-absorption; this process is (European Union), or is not (Nordic Community) accompanied by the creation of a super-state. Is the problem

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JOHAN GALTUNG solved? No, super-nations/states are similar to nations/states; super-levels also leading to super-conflicts/wars. B: One nation-two or more states/territories. Four cases, similar and different, of divided nations: the Koreans divided between North, South and Japan; the Kurds divided between five countries, Turkey, Iraq, Iran and (to a lesser degree) Syria and Armenia; the Mayas divided between Mexico (Chiapas), Guatemala (as a majority) and Honduras; and the Sami between Norway, Sweden, Denmark and Russia. One difference: the Koreans are alone in divided Korea. Table 2 offers five outcomes or stages. What is acceptable and sustainable depends, as usual, on the circumstances: first, human rights wherever they exist, certainly not realized for the Kurds and the Mayas, more for the Samis, more for the Koreans in the South than in Japan and less in North Korea. Second, autonomy within the states, meaning not only human rights but the right to be ruled by one’s own kind based on the ‘territorial attachment’; this is not a problem for Koreans in Korea, probably not viable for Koreans in Japan, but highly meaningful for Kurds, Mayans and Samis where they are numerous. Third, linking the autonomies in a confederation, possibly with its own parliament, which may have to meet in some other country, and its own representations abroad, taking on the functions of a state without being one. This is highly relevant for all four cases. Fourth, linking the autonomies in a federation, i.e., statehood with some autonomy for the constituent parts, like in the creation of the USA (from the years 1776-1865). Again, this is also highly relevant for all four cases. Fifth, a unitary state solution, taken by East and West Germany in 1990 (the federal aspects are along other lines). Like the fourth step (maybe also the third) this is likely to be heavily resisted by the states. Most relevant for the Koreas; in fact, President Kim Dae-Jung has a three-stage formula (3)-(4)-(5). C: Two or more nations-one state/territory, the state-territory being a ‘prison of nations’. Five outcomes are offered; what is acceptable and sustainable depends on the circumstances. They can also be seen as five stages, this time reflecting state disintegration more than integration: First, a unitary state solution, meaning that all irredentist, recalcitrant nations are given MFC (most favoured citizen) status, enjoying equality/symmetry, human rights and tolerance. If this is acceptable/sustainable, then so far so good. This turned Rhodesia into Zimbabwe, and has been the formula for Muslims in India, demanding symmetrical approaches to the Ayodhya conflict; Second, autonomy within the state, ‘sovereignty’, is what has been offered to the Palestinians and what may emerge in Hawaii for Hawaiians. Being asymmetrical it may be nonviable over time, calling for independence and possibly confederation for IsraelPalestine, federation being too close for comfort. Third, the federal state, based on territorial attachment or cultural identity, territorial or non-territorial with joint finance, foreign and security policies, like Switzerland. The formula has the advantage of symmetry, and a non-territorial version based on clans is interesting for Somalia. This (or (4)) may solve Beijing’s troubled relations with Taiwan, Hong Kong, Tibet, Xinjiang and Inner Mongolia. (Interesting for Lebanon?)Fourth, making the state a 170

THE ROLE OF AUTONOMY IN THE STATE-NATION DIALECTIC confederation, with de facto independence for the constituent parts flictto have their own finance, foreign and security policies. (Interesting for India?) Fifth, secession and independence, one (or more) new states are born both de facto and de jure. This is indispensable for Palestine, and possibly a solution for an Okinawa lorded over by US/Japan. Guiding the choice of alternatives (1) to (5) is how much sovereignty an ‘imprisoned’ nation actually wants. To know, ask questions like ‘how about separate stamps?’ ‘how about your own Olympic teams?’, ‘how about separate currencies?’, ‘how about a seat in the UN?’, ‘how about your own army?’, etc. Classical 19th century independence with a resounding yes! to such questions is on the way out. Other options have entered the discourse; statesmen/diplomats/journalists at least should learn even if they cannot create these options. People may in fact be much less dualistic than the stark ‘prison’/independence formula indicates, again by no means rejecting the formula completely. Sovereignty is a question of degree, of what is functional. What remains are Ecuador-Peru over la zona inejecutable, the disputed territory in the Andes mountains, and Japan-Russia over the Northern Territories/South Kuriles, the disputed territory off Hokkaido. The cases are somewhat different from the cases above. There are certainly two nations (Ecuadorians and Peruvians in the first case, Japanese and Russians in the second), and there is a territory, but not with an ‘imprisoned’ population of any magnitude. It is difficult to conceive of independence or steps in that direction, which is essentially what (1) to (5) in Table 2 are about. So a number (6) has been added for this case: holding it together, making it bi-national, a condominium, with shared/joint sovereignty, is also possible in cases like Northern Ireland and Basque Country and the Demilitarised Zone (DMZ) between the Koreas. As zone of peace there would be a number of non-threatening, cooperative measures such as natural parks, joint economic zones, camping grounds, conflict centres, etc. gradually attaining model character. D: Two or more nations-two or more states/territories. We then turn to the most complex, and most frequent combination, typical of today’s world, combining B and C. Generally speaking we are dealing with a messy combination of nations and states, like in the Caucasus with three states, 28 nations within them and each other, and four states intervening from the outside; something to consider for those who think the Basque Country, Northern Ireland and Yugoslavia/Balkans are complex. They are, but not always, found in mountainous areas; Caucasus, Pyrenees, Yugoslavia, Himalayas, Hindukush, where groups can be nesting in a valley for centuries only to be ‘discovered’ and claimed by the centre on the plains (Moscow, Paris/Madrid, Beograd/Zagreb, Beijing, UK/USA). For the Alps: the Swiss/Austrian models. The general formula is obviously to combine the approaches from B and C. The intellectual task of finding comprehensive and comprehensible formulas should not be underestimated. But there is another guiding formula: creating a context. In principle all these problems should be more tractable in a context of increasing 171

JOHAN GALTUNG regionalization and globalization, based on inter-state, inter-corporate and/or intercivil society cooperation. A new territorial border becomes less dramatic if it is osmotic, with those three types of cooperation seeping through at many points. Wherever there is a conflict because more than one nation has claims on the same territory, IGOs, TNCs and NGOs should be encouraged to engage all nations concerned, providing closeness across borders. The intergovernmental umbrella may be needed, whether in the form of an associative system, a confederal community, a federal union or even a unitary state; in this case the regional super-state. More concretely, here is a list of inter-state contexts that either exist, that could be strengthened or could be created (organizations that will have to be created are in brackets): United Nations (UN, N=189) (inadequate, but the only one) - for East-West b, the NATO-Russia/China/India-AMPO triangle - for Europe; the Catholic/Protestant-Orthodox-Muslim triangle - for the Christianity/Islam, Christianity/ ‘heathens’ formation Organization for Cooperation and Security in Europe (OSCE, N=55) - for East-West a, the NATO-WTO-Non-aligned/Neutrals triangle European Union (EU, N=15) - for Cyprus, with both parts as members, with Greece and Turkey - for Northern Ireland, with separate status as ‘entity’ (and, in addition, a Confederation for the British Isles). - for Basque Country, giving it separate status as ‘entity’ South Asian Association for Regional Cooperation (SAARC, N=7) - for tripartite Kashmir (Azad Kashmir, Valley, Jammu-Ladakh) - for tripartite Sri Lanka (Sinhalese, Tamils, Muslims) [Pacific Hemisphere Forum] - for Pacific Islands, Australia/New Zealand and Pacific Rims 172

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- for Japan-Russia - for Hawaii (with sovereign Hawaii as a possible centre?) [Organization for Security and Cooperation in the Middle East] - for Gulf a over Iraq’s relation to neighbours - for Gulf b over monitoring Iraq - for Kurdistan - for Israel/Palestine [Organization for Security and Cooperation in Southeast Europe] - for Yugoslavia a over Serbia—Croatia—B—I-H + - for Yugoslavia b over Serbia − Albania-Macedonia + [Organization for Security and Cooperation in Caucasus] - for Caucasus [Central Asian Association for Regional Cooperation] - for Afghanistan and neighbours [Community of Central African States] (Indian Ocean to Atlantic) - for The Great Lakes [Organization for Security and Cooperation in the Mediterranean] - for Gibraltar/Ceuta/Melilla - for Israel/Palestine [East Asian Community]: for China/Korea/Taiwan/Okinawa/Japan/NT [Organization for Security and Cooperation in Asia/Pacific] - for the whole region

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JOHAN GALTUNG All of them are useful, and dangerous lest they become super-states. 4. CONCLUSION: THERE IS WORK TO BE DONE Apart from interstate regional organizations, the five modelled upon the OSCE, there are some new ideas in need of exploration: Non-territorial (con)federations, functional sovereignty, and condominium/joint sovereignty. Below are some remarks on each idea. Non-territoriality is an answer to mobility that lowers the correlation between the culture and the territory of ‘a people’. Thus, a Norwegian Sami registers as a Sami, not defined by the territorial connection (address), but by territorial attachment (nation). A country with nations living around each other could have one parliament for each nation and a super-parliament for federal matters. That arrangement could take much of the heat out a mixture that becomes even more volatile and dangerous the less the nations are territorially separated (Yugoslavia, and Rwanda for example.) Functional sovereignty softens the status quo-independence dichotomy, introducing degrees of sovereignty, meaning control. The point of departure would be a list of functions attributed to countries in general, and states in particular; asking people in favour of independence what they really want, and people in favour of the status quo what they could concede. The process defines areas that can be negotiated, subject to review after X (to be negotiated) years. Condominium/joint sovereignty challenges the idea that each piece of land belongs to one and only one state and that res communis is res nullius, what is owned in common is owned by nobody. Condominium brings modern marriage into geopolitics, so far only used in colonial regions (New Hebrides, the Cameroons), and the Antarctic. The idea carries great conflict-solving potential, but also leads to interesting problems about the legal status of people living (not to mention born) in the area. That concludes this exploration of the dialectics between national identity and state integrity. Neither is absolute. If a state fails to meet individual human rights, civil-political and economic-social-cultural, it forfeits its claims on citizens to honour that state, pay taxes and lay down their lives for the state. The right to selfdetermination is the right of a nation to secede from such a state and to be ruled by their own kind, or else to demand major reorganization short of independence, in line with Article 28 of the Universal Declaration: Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. A nation cannot opt out of one state to set up another and then deny the same rights to peoples now under their control. There are limits to national identity, like there are to state integrity, regardless of how much the nation considers itself a

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THE ROLE OF AUTONOMY IN THE STATE-NATION DIALECTIC chosen people, with the glories of the past lining the future, compensating for the unspeakable traumas suffered and inflicted. States and nations should be demystified. But so should also discourses about majority vs. minority (a historical right is not numerical, it remains even if there is a majority to be concerned about), about multi-cultural societies (cultures as such have no territorial claims), about internal vs. external suppression (suppression is suppression), salt water colonialism (salinity is immaterial). A nation should not be forced to choose between the status quo and total independence because alternatives are not offered and a nation should not be forced to choose between acquiescence and violence because their right is not recognized. Adequate conflict transformation becomes a right, not only a duty. And it becomes a major task of the international community.

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AMBIGUITIES IN AND CLARIFICATIONS OF THE CONCEPT OF AUTONOMY1 Matti Wiberg 1. INTRODUCTION Was it an autonomous act when the Finnish rock musician Juice Leskinen in the beginning of the 1980s declared unilaterally and categorically his backyard a ‘nuclear free zone’? The property rights were undisputed: he owned his backyard. No nuclear weapons were located in his backyard. He did not like nuclear weapons. The declaration was authentic in at least two strong senses: He made the declaration of his own free will by himself without following orders or wishes of anyone else and he was probably also the first person in the history of the human race to make such a marvellous announcement. But was it in his discretion to make such a decision and a declaration? It is difficult to say, because the notion of autonomy is vague, to say the least. Maybe it was just a void, non-credible promise or threat, a mere symbolic gesture? For sure, it did not have any noticeable practical political implications. It is very disturbing that almost all writers on the topic of autonomy do not make clear to the readers (or even to themselves!) what they actually mean with the notion. The word is used in many different meanings in a bewildering amount of contexts, ranging from political philosophy to medical ethics, from epistemology to international law. There is little hope that the use of language could be unified to such a degree that the concept of autonomy would be used in only one meaning in political contexts It is fair to claim that no clear account of the concept of autonomy is available. Autonomy is a hopelessly confused concept. It does not help that it is somehow closely connected to such contested concepts as authority, control, freedom, interdependence, interest, liberty, non-interference, paternalism, power, responsibility, social coordination, and sovereignty – all core concepts in modern political theory. In political context autonomy is usually referred to as autonomy of agents. There are many kinds of entities that can be classified as agents, ranging from individual persons to various kinds of aggregate collectivities and to such emergent things as certain geo-political areas, which are administrative constructions. In the latter contexts an autonomous entity is something less – not more – than full sovereignty and complete independence. There is little hope to get a clear and unique understanding of what autonomous political entities stand for. 1

In order to save space the cumbersome (s)he-problem is in this chapter expressed only by he. No politically incorrect consequences are implied by this convention!

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MATTI WIBERG The concept of autonomy has many synonyms in the political discourses such as independence, self-government, self-determination, self-direction, self-reliance, and self-legislation. An autonomous agent is one that is exempt from arbitrary control, uncoerced, unrestricted. An autonomous agent is free to choose without any deterministic intervention by external facts or agents. But is it the case that an autonomous entity also must be autarchic, selfsufficient and self-sustaining? This does not seem to be a general requirement for political philosophers, who have systematically thought about the question. Autonomy does not require isolation from other agents and external facts can impact the autonomous agent. Autonomy should refer to self-direction rather than to selfsufficiency. The principle of autonomy is the belief that a person has free will and the capacity for making moral choices. As the individual has free will and can make moral choices, then each person has the right to do whatever he pleases as long as it does not directly hurt other people. Autonomy is understood both as a necessary condition for moral activity and is also understood negatively – being free from intentional coercion. To be autonomous is to act on self-chosen principles. In a choice theoretic perspective an autonomous agent chooses to pick one alternative from the agent’s choice set, in a very strong sense, independently from all external factors, such as other actors. An autonomous agent is in some sense input-independent: what the agent decides to choose is a matter of the agent’s – and only the agent’s – deliberation. There is no causally decisive intervention by any external fact or agent. But it does not make sense to claim that an autonomous agent completely ignores (external) facts: if an agent ignores, say the laws of nature, the laws of nature will sooner or later remind the agent of their existence! An autonomous agent pays attention to his action environment, but is not entirely determined by it. So it is the case that autonomous agents are also in some sense dependent on the external world. But in which sense are they dependant? Autonomy refers to acting as a causal agent in one’s life making choices and decisions regarding one’s quality of life free from undue external influence or interference. In some sense an autonomous agent can decide in an arbitrary way. Autonomy means independence of something, not everything, however. Nobody wants autonomy for its own sake, but only in order to further one’s goals. Autonomy is not a goal in it itself, but an instrument to guarantee that the preferences of the choosing autonomous agent are fully taken into consideration. We will restrict the following conceptual explications of political autonomy to democratic political systems, even when they constitute a minority of all political systems, past or present. It does not seem to make much sense to talk about autonomous political entities in non-democratic political contexts. In such contexts, by definition, there is always some agent that exercises power over some other set of agents in a morally justified or not justified manner. In non-democratic political systems autonomous arrangements have been used precisely because the central 178

AMBIGUITIES IN AND CLARIFICATIONS OF THE CONCEPT OF AUTONOMY power has been too weak to enforce its will; the local agents have thus been able to guarantee some local discretion, at least on the paper. Democracy is just the doctrine of majority rule. Its main idea may be summarized by stating that only the preferences of the majority should be taken into consideration in political decision making: if the majority has it its way, the arrangement is democratic, otherwise not. There are no substantial constraints as to what kind of policy the majority may choose to implement. The notion of democracy is, thus, content-free. Democracy only captures the idea of one agent, one vote. The outputs of the application of majority rule may by no means be only of the kind that a moral agent could or should accept. There are no inner constraints or filters that somehow automatically guarantee that only morally justified policies are enacted and implemented through the mechanisms of democratic means of majority rule. This is important to have in mind, especially for all those wellmeaning persons who try to defend simultaneously both democracy and autonomy. They may easily contradict each other in most political contexts. 2. THE RESEARCH PROBLEM The purpose of this chapter is to shed some analytical light on the notion of autonomy from the viewpoint of political theory and political science. The chapter is organized as follows. Firstly we start with some lexicographical remarks. Then we turn to some representative historical political philosophers in order to get a proper historical perspective of the concept. Next, we discuss some of the most helpful modern presentations on various aspects of autonomy. The chapter ends with a discussion and a few conclusions. We will study the following proposition, p: p: X is autonomous Under which kinds of conditions does this make sense? There is little, if any, hope that we could at the current maturity level of political theory end up with a unique specification for A in the following. Definition: X is autonomous if and only if A Can X be autonomous in isolation, i.e. can X be autonomous without being in any relation to any other actor? Or does the proposition p make sense only if we have some particular context C in mind: pC: X is autonomous if and only if A in context C The context refers here to all external things that can be separated from X but are somehow relevant for the understanding of the X’s true nature. 179

MATTI WIBERG The context can be described in many ways. It could, for instance, refer to a certain set of other agents who have certain characteristics with respect to the issue at hand. Surely, if an agent claims that he is autonomous in the strict sense that he is completely independent of any external causal factors, we simply consider him a particularly ill-informed, absurdly self-centred person, if not directly a madman. All agents, even the freest ones are in many ways dependent on some external forces, such as certain physical preconditions of human life (food, oxygen, suitable temperature, etc). An autonomous agent must have certain environmental conditions fulfilled before he can be classified even as an agent. And not all agents are autonomous or free in any meaningful sense of these notions. We may illustrate these points by considering a one-dimensional continuum, where an autonomous agent is situated between total social isolation and entire dependency upon others in a foolproof deterministic manner. Autonomy is thus a matter of degree, not a dichotomous thing. Any satisfactory theory of autonomy should be able to answer in a convincing way questions such as the following: • What is autonomy? Which necessary and sufficient criteria should be fulfilled before an agent can be claimed to be autonomous? Under which conditions can we argue that an agent is autonomous? • What of interest, if anything, follows from the claim that a certain agent or a particular act of his is autonomous? • How can it be that an agent is on one hand a social product through education and socialization in general, and on the other hand he is supposed to be a free agent in a moral sense? • Must the autonomy of an agent X be somehow accepted or confirmed by some other agents? • Do all relevant ‘others’ have to give their consent before an agent can be classified as autonomous? Which criteria for relevance should be applied here? • How important is autonomy compared to other values? • Can an agent pretend to be autonomous? • Must an agent know that it is autonomous in order to be autonomous? • Can an agent be autonomous by chance or is it possible to autonomous only if the agent itself in question has earlier somehow decided to be autonomous? • Can a prisoner in any sense be autonomous if he continuously and systematically rejects to comply with formally valid regulations? • Is autonomy a good thing? If it is, on which grounds is it? • Should autonomy be respected? If yes, why? • Is autonomy something that can be realized? • If agents X and Y both are autonomous, how do we know in a particular situation, which of these agents is more autonomous? 180

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Can a representative be autonomous with respect to those he is representing and still be a responsive politician? There is no theory of autonomy that would answer all of these trivial questions in a satisfactory way. 3. LEXICOGRAPHICAL REMARKS The notion of autonomy has a general dictionary meaning of being subject to one’s own rules, from the Greek auto (self) and nomos (rule or norm). Thus autonomy has its etymological roots in the two Greek words for self and rule or law, literally it stands for self-rule: the having or making of one’s own laws. In order for an agent to be autonomous, he should, firstly, have a developed self, to which ones actions can be ascribed. This in turn requires a consciousness of oneself as a being who acts for reasons, whose behaviour can be explained by reference to one’s own goals and purposes. The other dimension of autonomy requires a freedom from external constraints. An autonomous person is not someone who is manipulated by others, or who is forced to do their will. An autonomous person has a will of their own, and is able to act in pursuit of self-chosen goals. (Lindley 1986, p. 6, cf also Berlin 1958, esp. p. 131). When applied to individuals the word autonomy has four closely related meanings (Feinberg 1986, p. 28). It can refer either to the capacity to govern oneself, which of course is a matter of degree; or to the actual condition of self-government and its associated virtues; or to an ideal of character derived from the conception; or (in the analogy to a political state) to the sovereign authority to govern oneself, which is absolute within one’s own moral boundaries (one’s territory, realm, sphere, or domain). Note that corresponding to these senses of autonomous there are parallel senses of the term independent: The capacity to support oneself, direct one’s own life, and ultimately be responsible for one’s own decisions; the de facto condition of self-sufficiency which consists in the exercise of the appropriate capacities when the circumstances permit; the ideal of self-sufficiency; and the sense, applied mainly to political states, of de jure sovereignty and the right of self-determination. The opposite of autonomy is heteronomy. It can be either cognitive (to do with belief), or conative (to do with will). An agent is heteronomous if his beliefs or desires or actions are not autonomous. Lindley (1986, p. 70) offers the following conception which simply characterises ways of failing autonomy, that is, being heteronomous: An agent ‘A’ is cognitively heteronomous with respect to a particular belief or set of beliefs if either A holds that belief or set of beliefs on account of a failure of A’s passive or active theoretical rationality, or the belief or set of beliefs is false. An agent is conatively heteronomous with respect to a particular action or set of actions if either A acts through domination by lower-order desires, or A acts through weakness of will.

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MATTI WIBERG 4. HISTORICAL PERSPECTIVES One of the great classical authors of the notion of autonomy is Niccolo Macciavelli (1469−1527), who in the Discourses (1531) developed two senses of autonomy: the first was freedom from dependence, the second the power to self-legislate. The notion of autonomy and self-determination is above all an Enlightenment idea. In Western political thinking autonomy stands for freedom. It is a concept, which has played an essential role in the definition and development of democracy since the French Revolution. The most important classics in political theory who have contributed to our current understanding of autonomy are Jean-Jacques Rousseau (1712−1778), Immanuel Kant (1724−1804) and John Stuart Mill (1806−1873). Let’s have a look at each of these political philosophers’ core ideas concerning autonomy. In order to get a proper understanding of the notion of autonomy in the major classical texts in political theory, I conducted a computer search for the words ‘autonomy’ and ‘autonomous’ in order to find the relevant contexts in the main original sources. The results were somewhat surprising: The words do not appear at all in the following texts: Arostotle’s Politics, Hobbes’ Leviathan, Locke’s Civil Government, Machiavelli’s Prince, Burke’s Reflections on the Revolution in France, Mill’s On Liberty. The only hit I found was in Mill’s Representative Government, but even here the word ‘autonomy’ appears in a context that is not interesting for us. The big classics did not systematically discuss the notion of autonomy, but it is still safe to claim that they were discussing relevant issues even when they did not mention the words ‘autonomy’ or ‘autonomous’. Rousseau deals with the notion of autonomy in Book 1, chapter 6 of his Du Contrat Social (1762), where he argues that freedom is obedience to a law that we prescribe to ourselves. The problem of social order, then, becomes the problem of reconciling the individual’s right to autonomy with the existence of the state, and in particular with the state’s right to create and enforce laws. Rousseau sets out this problem as the need to find a kind of association ‘in which each, while uniting himself with all, may still obey himself alone, and remain as free as before’. Rousseau’s solution is ‘simple and elegant’ (Wolff 1995, p. 107): all must equally play a part in the creation of laws to which all will be equally subject. In other words, individual autonomy is reconciled with the autonomy of the state by a form of direct, participatory democracy. At the same time, group autonomy is preserved: Rousseau’s ideal state is self-governing. It does not take a political philosopher to see that Rousseau wants to combine mutually exclusive things; he is simply demanding too much. For the German philosopher Immanuel Kant an actor is autonomous if and only if he chooses the principles of his action as the most adequate possible expression of his nature as a free and equal rational being. The principles he acts upon are not adopted because of his social position or natural endowments, or in view of the particular kind of society in which he lives or the specific things that he happens to want. To act on such principles is to act heteronomously. This is one of the leading principles in Kant’s Critique of Practical Reason (1788). For Kant the most 182

AMBIGUITIES IN AND CLARIFICATIONS OF THE CONCEPT OF AUTONOMY important thing about people, from the moral point of view, is that we are creatures with a will (Lindley 1986, p. 16) Kant was inspired by Rousseau. Kant’s rather complex argumentation may be summarized by stating that the fundamental assumption of moral philosophy is that actors are responsible for their actions. From this assumption it follows necessarily that agents are metaphysically free, which is to say that in some sense they are capable of choosing how they shall act. The obligation to take responsibility for one’s actions does not derive from the actor’s freedom of will alone, for more is required in taking responsibility than freedom of choice. Only because the actor has the capacity to reason about his choices can he be said to stand under continuing obligation to take responsibility for them. Since the responsible actor arrives at moral decisions that he expresses to himself in the form of imperatives, he so to say gives laws to himself, or is self-legislating. For Kant moral autonomy is a combination of freedom and responsibility; it is submission to laws that one has made for himself. The autonomous agent, insofar he is autonomous, is not subject to the will of another. The fact that he may do what another asks of him is purely accidental and contingent. He does not follow anyone’s orders. He does not act in a certain way because he has been told by someone to do it. The orders or wishes are not causally connected to the agent’s actions. For the autonomous agent there is no such thing as a command by some other agent. A Kantian autonomous agent may listen to the advice of others, but must decide for himself whether it is good advice: no moral agent can, by definition, delegate that decision making to someone else. For Kant autonomy is displayed when a person freely decides, out of respect for a moral demand, to act morally and independently of any external incentives. In Rousseau’s theory the people are both sovereign and subject. The people are bound by laws, but only those they have themselves made. Kant applied a similar conception to the individual person at the end of Foundations of the Meaphysics of Morals (1785). He used it to describe how we can be strictly bound by demand of morality, and yet have the freedom and dignity essential to personhood. Our compliance with a demand of morality has genuine moral worth only if it is done out of respect for a law which is seen as springing from our self-legislation (Critique of Practical Reason 1,1, section 8). (Mautner 1996, p. 40) Needless to say, it is entirely confused where Kant, strictly speaking, draws the lines of freedom and responsibility. The behavioural consequences are not spelled out clearly enough in an unambiguous way – a true indicator of a classical text, by the way! The Kantian view could be described as an extreme rationalist conception of autonomy, since it claims that rationality is not merely necessary, but also sufficient for autonomy, and identifies rationality (the avoidance of irrationality) with pure rationality (being untainted by desire or inclination). The most important contribution to liberal theory of the Kantian view is the principle of equal respect for individual people, which is based on recognition that people are (equally) creatures with a will. (Lindley 1986, p. 27)

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MATTI WIBERG But Rousseau and Kant are by no means the only confused social philosophers. J. S. Mill states in the opening chapter of the On Liberty (1859): ‘The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else . . . The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign . . . The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental or spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.’ (Mill 1979, pp. 71−72) There is an enormous debate on what Mill actually meant with the rule that harm is a relevant constraint on individual liberty. There are at least two sets of principles: other-regarding (referring to harm inflicted on others) and self-regarding (referring mostly to harm inflicted on oneself). The other-regarding principles of restricting individual liberty must be split into different categories according to three major criteria: first, the kind of unpleasantness inflicted on others; second, whether the unpleasantness is inflicted actively (by actually ‘harming’) or passively (by ‘withdrawing or denying a benefit’); and third, whether the unpleasantness or embarrassment is faced by an individual or an institution. (Feinberg 1973, p. 33) Employing the first criterion, at least four principles can be spelled out, stating, for instance, that a person’s individual liberty may be curtailed (Feinberg (1984, pp. 45−51)) (1) to prevent harm to others; (2) to prevent hurt to others; (3) to prevent offences to others (4) to prevent other kinds of unpleasantness to others

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AMBIGUITIES IN AND CLARIFICATIONS OF THE CONCEPT OF AUTONOMY Harm here is defined as a frustration of a person’s vital interests. Hurts and offences in their turn can be defined, respectively, as non-harmful physical and mental pains or other discomforts. In addition to them, states such as anxiety and extreme boredom, which do not seem to fit readily into either of the categories, must be labelled as others. Non-harmful experiences are not unpleasant enough to amount to a genuine frustration of vital interests. Harmful and non-harmful experiences may be causally produced either directly or indirectly. Activity and passivity in causing, say harm, to others can be spelled out by making the distinction between curtailing the individual liberty of an actor either to prevent harm to others or to benefit the others. It is not at all clear from Mill’s own writings which of these various reasons for curtailing individual freedom would have been acceptable to him. Other-regarding unpleasantness was, according to him, sometimes a good ground for constraining people’s behaviour but not always. However, the other half of Mill’s view is more rigidly expressed: since self-protection is the ‘sole end’ and ‘only purpose’ for which the liberty of one person may be legitimately curtailed by others, selfregarding harm can never justify constraint. Although this is his general thought, he does oddly provide some exceptions. In addition to the positive harm principles, Mill presents three or four major negative principles. A person cannot rightfully be compelled to do or forbear (5) because it will be better for him to do so; (6) because it will make him happier; (7) because, in the opinion of others, to do so would be wise; or even (8) because, in the opinion of others, to do so would be right. The Millian approach to autonomy has the virtue of combining the Kantian insistence on rational activity with the Humean recognition that the ultimate ends of human beings may be as diverse as their sentiments. It thus offers ‘the most plausible account on why autonomy might be something especially valuable’ (Lindley 1986, p. 61). The Millian account of autonomy combines the Kantian insight that human beings are not just the passive victims of whatever passions happen to beset them with the Humean insight that the goals that are rational for a given person to pursue are relative to his own distinct characteristics (Lindley, p. 63) 5. MODERN PRESENTATIONS The concept of autonomy is discussed in many contexts of modern political philosophy, as may be seen from the following random sample of presentations of the concept of autonomy: An autonomous agent is a free agent, being self-directed in that he knows what he wants and that he is not obstructed in the pursuit of it (Hollis 1994, p. 73) Autonomy signifies the power and authority, as well as the legitimate capacity, to govern oneself in those matters, which form the basis of the community. (Friedrich 1963, p. 595) 185

MATTI WIBERG The American political scientist Robert A. Dahl (1982, p. 26) defines relative autonomy in the following way: ‘An organization is relatively autonomous if it undertakes actions that (a) are considered harmful by another organization and that (b) no other organization, including the government of the state, can prevent, or could prevent except by incurring costs so high as to exceed the gains to the actor from doing so.’ Here autonomy refers to the agent’s power of having it its own way, despite the preferences or wishes of others. Oddly, Dahl also requires that the decisions made and implemented by an autonomous agent unavoidably must contradict the wishes of some others: ‘Literally meaning self-rule, autonomy is ascribed in popular political parlance to self-governing states, or to institutions or groups within states that enjoy a substantial degree of independence and initiative. In political thought the term is often now used to refer to an aspect of personal freedom. Autonomous individuals are those whose ends and purposes are authentically chosen, as opposed to those who allow themselves to be conditioned by external forces. But, as with positive senses of freedom generally, the criteria of authentic choice may be specified in different ways, and so it may be a matter of dispute which persons should be counted as autonomous’ (Miller 1987, p. 31)

Isaiah Berlin (1969) makes in his classical essay Two Concepts of Liberty a distinction between negative and positive liberty. Negative liberty refers to the area on non-interference by society in the life of the individual. Positive liberty, on the other hand, has to do with who or what controls an individual’s life. In his celebrated A Theory of Justice, the American political philosopher John Rawls (1970, ch. 78, p. 515) characterizes autonomous action in the following way echoing Kant’s position: Persons are acting autonomously when ‘they are acting from principles that they would acknowledge under conditions that best express their nature as free and equal rational beings’. He also states that ‘acting autonomously is acting from principles that we would consent to as free and rational beings’ (Rawls, p. 516) Thus, a free person is an individual who has the disposition to act rationally in view of the goals he has chosen in an autonomous way, i.e. independently. Robert Nozick discusses the notion of autonomy in passing in his Anarchy, State and Utopia (1974). Nozick links the concept of autonomy with the concept of inviolability. Respecting the domain of human autonomy is defined in terms of putting side constraints upon how other human beings may behave towards me and me towards them, and these side constraints will define the class of rights, which I have to protect my domain of autonomy. Similarly you have a duty in respect of these rights − to forbear a range of actions, which have interfered with the domain of autonomy. Rights are thus defined in terms of non-interference − the right not to be interfered with so long as one is not interfering with anyone else. (Plant 1991, p. 267−268) 186

AMBIGUITIES IN AND CLARIFICATIONS OF THE CONCEPT OF AUTONOMY Robert Paul Wolff (1970) is one of the current political philosophers who have given the notion of autonomy considerable thought. Wolff tries to theoretically defend the very possibility of philosophical political anarchism. He defines authority as ‘the right to command, and correlatively, the right to be obeyed’. Authority must be, according to him, distinguished from power, ‘which is the ability to compel compliance’. (Wolff 1970, p. 4) Since the defining mark of the state is authority, the right to rule, and since the primary obligation of man is autonomy, the refusal to be ruled, Wolff claims that there can be no resolution of the autonomy of the individual and the putative authority of the state: ‘Insofar as a man fulfils his obligation to make himself the author of his decisions, he will resist the state’s claim to have authority over him. That is to say, he will deny that he has a duty to obey the laws of the state simply because they are the laws. In that sense, it would seem that anarchism is the only political doctrine consistent with the virtue of autonomy’ (Wolff, p. 18). He claims radically that authority and autonomy are genuinely incompatible, and argues that it is ‘out of the question to give up the commitment to moral autonomy’ (Wolff, p. 71–72). Moral autonomy is something to be maximized. To the extent that an agent insists on remaining to be the author of its own practical decisions it must resist the suggestion that the state – or indeed any other collective of people – has the right to make those decisions for it, or to tell it what to do. Wolff’s thesis is that autonomy implies the refusal to be ruled (see Graham 1982 for an overview of the relevant literature on Wolff and a critical discussion on Wolff’s core argumentation.) Graham argues that the supreme importance of the autonomy of moral agents is not merely compatible with one form of democratic decisionmaking but actually require it. Taylor (1982, pp. 148−150) provides many sober statements and clarifications on the concept of autonomy. The following points are his. Two things are involved in the notion: rationality (having and using capacities of the intellect, thus excluding inter alia brainwashed persons and those acting under hypnosis) and authenticity. Both notions are ambiguous. An agent who acts on the results of rational deliberation may yet have wants and needs, subscribe to norms and principles, and lead a way of life, which he has taken over uncritically from his social milieu or which are provided for him ready-made by his social roles – which are not, in a word ‘his own’ – and in this case he is said to lack authenticity. But if a person’s wants, principles, and so on are not simply provided for him by others (as of course they must be to some extent), how do they arise? What does it mean to say that they are ‘his own’? There are two sorts of answers in the literature: The first is to say that the agent’s thoughts or actions are authentic if they are an expression of his ‘core self’, which is defined as something like a constellation of relatively deeply rooted, important dispositions, knowledge of which helps us to anticipate and explain his actions over a relatively extended stretch of his total behaviour. If such anticipation and explanation is to be possible, it should be added that these basic dispositions must cohere; if they do not, the person lacks a ‘core self’. An individual’s thoughts and actions, on this account, are ‘his own’ (though the same thoughts and actions might be characteristic of many other individuals). This account of authenticity will 187

MATTI WIBERG not suffice though, since it makes no reference to the source of the ‘deeply rooted dispositions’ that make up the individual’s character. The second approach to authenticity says that an agent’s wants, principles, etc. are ‘his own’ when they have been adopted or affirmed critically; when his actions are expressive of a character he has chosen to become or affirm as one he identifies with; and when he plays his role critically, with distance. The life of an autonomous agent has a consistency that derives from a coherent set of beliefs, values, and principles, by which his actions are governed. These are not supplied to him ready-made as are those of the heteronomous man: they are his, because the outcome of a still-continuing process of criticism and revaluation. He does not simply accept the roles society thrusts on him, uncritically internalising the received mores, but is committed to a critical and creative search for coherence. The point here is that the agent must make himself, he shall not be a product of causal determinants, which are external to the agent-ansich. Politics is characterized above all by two features: heterogenous preferences and informational asymmetry, i.e. different actors typically want at least partially different things and they usually also know at least partially different things. When political actors refer to the norm of autonomy, they usually do it instrumentally: they do want to further their own goals, which may deviate from the objectives of the other relevant actors in a given situation or context. The relevant actors usually do not share all beliefs. This makes it possible for actors to try to profit from their private knowledge, which is defined as that part of their belief system, which is not shared with any other actor. No man is an island. Not even an autonomous agent can ignore the existence of other actors. The actuality of other actors may in many ways influence even autonomous agents choices. The interdependence of decisions is a common feature to all of our strategic interactions: one actor’s choices may be influenced by another actor’s choices. Any rational actor must anticipate the other actors’ possible choices and their consequences in order to be able to choose rationally. This is studied in game theory. Any agent ignoring the causal powers of other actors or their existence commits the so-called Robinson Crusoe-fallacy: They behave as though they were the only actors around in situations where the final outcomes actually depend also on the choices of other actors. Social life is, by definition, a sphere of interdependence, thus excluding the very possibility of extreme or genuine autonomy of any agent. Any individual is born into a social world, which is already organized into regular patterns of behaviour and expectation. These patterns are not to be completely reorganized or designed at will by all new persons that happen to be born. The actual chance for autonomy is thus, in very strong senses of the notion, constrained from the start. 6. DISCUSSION AND CONCLUSIONS The previous presentation has showed that the concept of autonomy is used in a bewildering array of different meanings. No clear common pattern has emerged in 188

AMBIGUITIES IN AND CLARIFICATIONS OF THE CONCEPT OF AUTONOMY Western political thought. Consequently two norms come into mind immediately: every writer should define what he, strictly speaking, means when he uses the notion, and he should then stick to this meaning in a consistent manner. It is trivially obvious that practically all writers break against both of these rules. There are, however, some good political reasons for this: The strategies of ambiguity may be politically profitable. The vague notion of autonomy is very useful in many instances precisely because of its vagueness: when there is no commonly shared clear notion of what autonomy in the final analysis stands for – what it covers and what it excluded – it is very helpful for many actors in various kinds of social disputes. Take, for instance, the Camp David Agreement, which was signed on 17 September 1978 by president Jimmy Carter of the USA, president Anwar Sadat of Egypt, and prime minister Menachim Begin of Israel. It would end the state of war between Egypt and Israel, and supposedly offered a solution to the Palestinian problem, which had been at the heart of the Middle East conflict since 1948. Sinai was returned to Egypt by Israel, and the Israelis agreed to offer autonomy to the Palestinian Arabs living in the West Bank and Gaza regions. It was no coincidence that the agreement did not define autonomy. The different parties to the agreement interpreted the content of the agreement differently: the Israelis understood autonomy to be a very limited form of administrative control over some day-to-day affairs. If the Israelis have their way the lands over which the Palestinians might have autonomy would come permanently under Israeli sovereignty, and the Israelis would maintain complete control over such vital matters as internal security and foreign policy. On the other hand the Egyptians understood autonomy to be something more substantial. For them autonomy meant no less that self-government, perhaps in the sense of territorial sovereignty. (Lindley 1986, p. 1–2) Another paradigmatic case is of more recent origin. When in 1996 neither the Russians were able to defeat the Chechen armed forces – called rebels, of course, by Moscow – nor were the Chechen separatists able to defeat militarily the Russian army, the conflicting parties settled for some kind of autonomical arrangement. Again, it was an essential element of the success story of the settlement that the details of the arrangement were not spelled out. Only a political idiot would take this as the final word in the dispute and every political realist understands that this settlement was so useful to both parts in the dispute since it gave both parts the possibility to save face in a military stalemate. It was precisely the ambiguity of the notion of autonomy, which made the deal possible; both parties could explain to their relevant in-groups that they had won. This is not a minor accomplishment in a zero-sum situation. This is also one of the main reasons why we are to expect that the notion of autonomy will flourish in many kinds of political texts and practices in the future: Not the clarity, but the ambiguity, of the concept is the most important guarantee of its frequent popularity: it is a wishing box ready to serve anyone.

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MATTI WIBERG 7. REFERENCES Berlin, Isaiah (1969) ‘Two Concepts of Liberty’ [1958], in Four Essays on Liberty. (Oxford University Press: Oxford, 1969). Dahl, Robert A. (1982): Dilemmas of Pluralist Democracy: Autonomy vs. Contro (Yale University Press: New Haven, 1982) Feinberg, John (1973) Social Philosophy (Prentince-Hall: Englewood Cliffs, 1973) Feinberg, John (1984) Harm to Others (Oxford University Press: Oxford, 1984) Feinberg, John (1986) Harm to Self (Oxford University Press: Oxford, 1986) Friedrich, Carl Joachim (1963): Man and His Government: An Empirical Theory of Politics (McGraw-Hill: New York, 1963) Graham, Keith (1982) Contemporary Political Philosophy: Radical Studies (Cambridge University Press: Cambridge, 1982), pp.113-137. Held, David (1991): Political Theory Today (Cambridge: Polity Press, 1991) Hobbes, Thomas (1979): Leviathan (Penguin: London, 1979 [1651]) Lindley, Richard (1986) Autonomy (London: Macmillan, 1986) Locke, John (1965), Two Treatises of Government (Cambridge: Cambridge University Press, 1965) Mautner, Thomas (1996), A Dictionary of Philosophy (Oxford: Blackwell, 1996) Mill, John Stuart (1979), On Liberty (Harmondsworth: Penguin, 1979) Miller, David (1987), Autonomy, in Miller, David (ed.): The Blackwell Encyclopaedia of Political Thought (Oxford: Blackwell, 1987) Nozick, Robert (1974), Anarchy, State and Utopia (London: Blackwel, 1974) Plant, Raymond (1991), Modern Political Thought (Oxford: Blackwell, 1991) Rawls, John (1972), A Theory of Justice (Oxford: Oxford University Press, 1972) Rousseau, Jean-Jacques (1966), Du Contrat Social (Paris: Flammarion, 1996) Taylor, Michael (1982), Community, Anarchy and Liberty (Campbridge: Cambridge University Press: 1982) Wolff, Jonathan (1995), Autonomy, in Lipset, Seymour Martin (ed.): The Encyclopedia of Democracy (London: Routledge, 1995) Wolff, Robert Paul (1970): In Defense of Anarchism (NY: Harper Torchbooks, 1970)

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META-LEGAL AND PHILOSOPHICAL DIMENSIONS OF AUTONOMY PARADOXES OF AUTONOMY: TENSIONS, TRAPS AND POSSIBILITIES Thomas W. Simon 1. INTRODUCTION Autonomy implies freedom – minimally, freedom from intrusion and freedom to flourish. Autonomy begins with a protective shield. Before engaging in some creative explorations, an immediate application of autonomy’s protective shield faces us. Organizations presuppose a certain degree of autonomy necessary to function as organizations. Organizations warrant a protected space and uninterrupted time to do what they do best. Organizations that speak on behalf of those with little or no voice deserve special consideration. Particularly, organizations that place the interests of others ahead of their own warrant autonomy. Human rights organizations, which speak for the weak, must have maximum autonomy. The government of Denmark has undermined the work of the Danish Centre for Human Rights first through the later-rescinded act of dismantling the Centre and then through severe budget cuts. Attacks on the autonomy of a human rights organization are similar to attempts to dismantle charities dedicated to helping the weak and the infirm. Often, an organization that promotes a policy ironically fails to apply the policy to its organizations because of the policy’s negative impact on the organization. In this case, however, the organization that sponsors a conference on autonomy could benefit from asserting its autonomy. This basic, minimalist form of autonomy should not require assertion since any civil society would simply take this minimalist sense of autonomy for granted. The discussion below addresses some more controversial senses of autonomy.1 Autonomy has appeared in the midst of ethnic conflict and disputes over minorities. At times, autonomy may come to the rescue to quell conflicts and resolve disputes. More often, autonomy represents one of many pieces of an extraordinary complex puzzle. Before pinning our hopes on it, we should know its potentialities and its limitations.

1

For the classic text and compilation of documents see H. Hannum, Autonomy, Sovereignty and Self-Determination (Pennsylvania University Press, Philadelphia, 1990) and Documents on Autonomy and Minority Rights. (Dordrecht: M. Nijhoff, 1993).

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THOMAS W. SIMON 2. AUTONOMY’S CONCEPTUAL STATUS In some political philosophies, autonomy applies exclusively to the individual. Individual autonomy signifies the freedom of an individual to make choices free from intrusion by external agents. The picture of an autonomous self has ennobling as well as distorting features. At the heart of individual autonomy applied lies the hopes and aspirations captured by the aphorism ‘Think for yourself’. When individuals give meaning to their lives and when they make moral choices, they manifest their human identity. So-called ‘autonomous selves’ make fundamental decisions. Other individuals should not force their decisions on an autonomous self. The autonomous individual serves as a foundation or at least as an inspirational goal of Western liberalism. Yet, the image of autonomous individuals who think for themselves gives a distorted picture of individuals. The picture leaves out the social component. No one truly thinks in isolation. Thought involves the social phenomenon of language. In addition, the process of thinking demands social interaction through discussion and dialogue. Any discussion of autonomy should remain alert to distorting features contained in idealizations of it. Collective autonomy, unlike individual autonomy, includes the social aspect. The term ‘collective’ encompasses some social phenomena. Collective autonomy enables individuals to flourish as part of a social group. Individuals develop within and through group identification.2 Collective autonomy protects individuals and a group through mutual nourishment. Yet, collective autonomy distorts just as individual autonomy distorts. More so than its individual brethren, however, its contorting features operate on multiple levels. Since the idea of collective autonomy places the protective shield around a group, when the idea is put into practice, a tension with the individual arises. Given that the formulation begins with the group, collective autonomy constructs an asymmetrical tension between group and individual. The group, conceptually, has a higher place than the individual within the framework of collective autonomy. This means that any collective autonomy arrangements will have to be especially sensitive to the individual. The under-evaluation of the individual in collective autonomy complements the under-evaluation of the collective in individual autonomy. The tensions inhering in collective autonomy, however, go beyond these well known conflicts. No matter how benign or well meaning a proposal for collective autonomy might be, it additionally creates tensions with other collectives. The placement of a protective shield around one group raises potential questions about establishing protective shields around other groups. Another way to see the tensions inherent in the idea of collective autonomy is to note paradoxes arising with each of the three different values used to justify autonomy. Each value – democracy, community, and peace – contains some form of a paradox.3 The term ‘paradox’ is not being used in its more philosophical sense to 2

I shall use the terms ‘community’, ‘group’, and ‘minority’ interchangeably. For the purpose of this analysis, nothing hinges on differentiating them. 3 See Appendix C.

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PARADOXES OF AUTONOMY: TENSIONS, TRAPS AND POSSIBILITIES mean a logical argument that seems to produce contradictory conclusions. Justifications of collective autonomy produce something akin to a dilemma. A dilemma classically arises when a logical analysis of a claim produces equally unsatisfactory conclusions stemming from that claim. Yet, the dilemmas found in thinking through collective autonomy do not have these neat logical lines. A closer look at collective autonomy reveals tensions captured by a more common sense use of the word ‘paradox’. Before exposing these paradoxes, we need a clearer idea of the concept of collective autonomy. Within international law, the concept of autonomy occupies what we can think of as a middle-level position.4 On the one hand, it does not sit among the higher levels of more established concepts such as sovereignty. On the other hand, the idea of autonomy has a more secure conceptual stature than controversial notions such as a ‘right to development’ (a third generation right). Autonomy has a relatively secure but not completely stable foundation in international law. The concept of autonomy will not garner a consensus among international jurists, but its semantic indeterminacy, that is, having different meanings, does not provide grounds to dismiss it as too vague or as open to any interpretation whatsoever. Autonomy’s indeterminacy-of-meaning creates room for creative but limited interpretations. The middle level position taken by the concept of autonomy should inform strategies for its use. It would make sense to avoid over emphasizing autonomy, but it also makes sense to take advantage of opportunities to use it. Further, autonomy’s intermediate conceptual status means that it connects, in critical ways, to other legal concepts, especially, as we shall see, to the concept of citizenship. Finally, autonomy’s intermediate status makes it particularly sensitive to context. Collective autonomy occurs within a context. The dynamics inherent in these contexts makes autonomy a justifiable device but never a panacea, a problem but never a scourge. The successful implementation of an autonomy device does not assure an outcome – good or bad. 3. AUTONOMY AND CLOSELY RELATED CONCEPTS As a middle-level concept, autonomy does not stand isolated from other key concepts in international law. It spills over onto other concepts. Please forgive the pun, but autonomy does not have autonomy. Autonomy overlaps with other concepts within international law. Autonomy does not just relate to other concepts. Other more entrenched concepts set conditions for autonomy. The problem is which concept best relates to autonomy. Let us consider two candidates. Radically different analyses result depending if self-determination or citizenship become autonomy’s closest kin. The minority treaty system, put in place following World War I, acknowledged a weak form of the right to self-determination. Following on the heals of the 4 A similar analysis of the autonomy’s conceptual status is found in Hans-Joachim Heintze ‘On the Pros and Cons of Autonomy from the Viewpoint of International Law’ (‘the concept of autonomy is not a well-fitted legal concept’) in this volume.

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THOMAS W. SIMON disintegration of the Austrian-Habsburg and Ottoman Empires, international law recognized a weak form of integrity for certain territorial groups. Following World War II, international law took a radically different approach by effectively shunning territorial groups and largely ignoring non-territorial groups. If there were a right to secession in international law, it would be difficult to argue the case before the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples. Accordingly, all colonial territories had the right to independence. So, a statebounded territorial group had a right to self-determination. The question remains whether paragraph 2, which declares that ‘[a]ll peoples have a right to selfdetermination’, has a more expansive interpretation. A decade later, the Declaration on Principles of International Law Concerning Friendly relations and Co-operation Among States in Accordance with the Charter of the United Nations seemed to provide the groundwork for expanding the right to self-determination beyond colonial peoples to ethnic, linguistic, and national groups. Autonomy provided a sense of political boundaries distinct from the state. The issue then becomes whether those within a political boundary distinct from the state had a right to determine their own fate. Citizenship provides another possible concept to associate with autonomy. If citizenship takes precedence over self-determination in its relationship to autonomy, then a different analysis follows. Citizenship comes in different degrees and varieties. Variations in citizenship affect the degree and type of autonomy and vice versa. Similarly, the legal status of various types of collectivities has an important bearing on autonomy. Before we make proposals for future autonomous and integrationist measures, it might prove helpful to reexamine past conflict cases where autonomy did or might have played a role. Two regions where conflicts recently have erupted, namely, the Balkans and Central Africa, contain important examples where autonomy operated in the midst of other legal concepts such as citizenship. Former Yugoslavia. Group designations, types of citizenship types, and degrees of autonomy played critical roles in the Socialist Federal Republic of Yugoslavia.5 This, in turn, set the background for the conflicts in the 1990s. The 1946 Constitution of the Former Yugoslavia used a three-tired classification system. Federal Yugoslavia had three types of citizens: ‘nations’ or narodi (Serb, Croat, Slovene, Macedonian, Montenegrin, and Muslim), ‘nationalities’ or narodnosti (those with a ‘national homes’ outside Yugoslavia, such as Albanians), and ‘other nationalities and ethnic minorities’ (Jews, Yugoslavs). ‘Everyone held a Yugoslav citizenship but no one held Yugoslav nationality’, except in a census.6 Individuals could designate their national identity under one of the six nations or as Yugoslavs in a census taken every ten years. National identity never appeared on an individual’s passport, although it did appear on the Yugoslav Peoples Army’s identity cards. The 1946 Constitution recognized Serbs, Croats, Slovenes, 5

See Appendix A. Tonc Bringa, Being Muslim the Bosnian Way (Princeton University Press, Princeton, 1995) p. 27.

6

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PARADOXES OF AUTONOMY: TENSIONS, TRAPS AND POSSIBILITIES Montenegrins, and Macedonians as nations. It did not recognize Bosnian Muslims as a nation or as a nationality. In the 1961 census, Bosnia Muslims became a nationality (formalized in the 1963 Constitution). In the 1971 census, Bosnian Muslims became a nation (formalized in the 1974 Constitution), that is, Muslims then had a national home in the republic of Bosnia-Herzegovina. In the 1974 Constitution, Bosnia-Herzegovina became one of the six primary republics, but the constitutional drafters only defined Serbo-Croatian, Slovenian, and Macedonian as official languages. This is not to say that the idea of Bosnian Muslims appeared out of thin air. The late 1970s saw a campaign to designate Bosnia a Muslim Republic as well as official authorization of mosque building. Yet, during that same period, Yugoslavs saw Bosnian Muslims as the hope for constructing a national Yugoslav identity, which, as noted above, constitutionally held the bottom tier of ‘Other’ along with Jews. This brief history shows the designation ‘Bosnian Muslim’ as a distinct, contested and changing minority classification. Further, it illustrates the complex interplay among determinations of group and of citizenship. The 1946 Constitution designated the region of Vojvodina, with its majority Hungarian population, as an Autonomous Province. Kosovo (more accurately, Kosovo-Metihija) then became an Autonomous Region, a decidedly lower designation because unlike Vojvodina it did not have an independent legislature or a supreme court. The 1963 Constitution upgraded Kosovo to the same status as Vojvodina, but this Constitution decreased the powers of autonomous provinces. With the 1974 Constitution, Kosovo became a full constitutive member of the Yugoslav Federation as one of eight federal units. However, unlike Bosnian Muslims, who by that time had attained nation status, Albanians remained in the lower category of nationality. From this constitutionally mandated design and Yugoslavia’s demographics, two critical observations emerge. First, Albanians remained second-class citizens (a nationality) ‘despite their numerical superiority over less numerous Slav nations of Yugoslavia, which did have their own republic within the federation’.7 Second, the creation of the autonomous provinces of Vojvodina and Kosovo meant, ‘21% of the Serbs in Serbia were not under the jurisdiction of Belgrade’.8 Albanians in Kosovo solidified their legal identity earlier than Bosnian Muslims did. Constitutionally, Albanians achieved nationality status in 1946 whereas Bosnian Muslims did not do so until the 1960s. From the 1974 Constitution to the 1989 constitutional crisis, when Serbia amended its republic constitution to undermine Kosovo’s autonomy, ‘the Albanians of Kosovo had a better situation in terms of representation and cultural autonomy than they had known at any time since the end of the Ottoman Empire and arguably in their entire history’.9 Up until 1990, when 7

M. Vickers, Between Serb and Albanian: A History of Kosovo (Columbia University Press, New York, 1998) p. 217. 8 M. Vickers, Between Serb and Albanian: A History of Kosovo (Columbia University Press, New York, 1998) p. 179. 9 M. Vickers, Between Serb and Albanian: A History of Kosovo (Columbia University Press, New York, 1998) p. 217.

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THOMAS W. SIMON Serbia removed Kosovo’s autonomy and imposed repressive emergency measures, Albanians had co-existed with Serbs in Kosovo. Given all the platitudes about the advantages of hindsight, it is difficult to pinpoint how to have taken different actions to avoid the subsequent decade of conflict in the Balkans. Perhaps, hasty recognition of secession claims by Slovenia and Croatia fueled the flames of conflict. Interim measures of autonomy for the breakaway republics might have controlled the conflicts. Maybe the European Union’s Badinter Arbitration Commission should not have so rigidly adhered to uti possidetis (a high level concept), which freezes previously established borders.10 Through all the speculation, one thing stands out, namely, the critical function that the rule of law should have played. Whatever scenarios of what might have worked, it is critical that the rule of law played a central role in the better approaches. For purposes of our discussion, a critical event occurred when Serbia violated the lawfully established autonomy of Kosovo. Devoting this much space to the Former Yugoslavia may expose a raw nerve. Western European or American jurists do not sing (at least not officially) the praises of the political designs and policies of the former communist regime in Yugoslavia. Yet, one may notice similarities between some recent proposals and features of the Former Yugoslavia. In any vent, the recent past provides a fruitful laboratory for reflective thought. Central Africa provides another conceptual laboratory for thinking about the affects external citizenship policies have on minority issues.11 Rwanda. Hutus and Tutsis, inside and outside Rwanda, are Banyarwandan, that is, speakers of Kinyarwanda (who number over ten million), who also practice the same religion and have similar cultural habits. Within Rwanda, however, Hutus and Tutsis have constituted radically different political identities. Rwandan independence ushered in varying waves of discrimination against the Tutsi minority under two Hutu led regimes. The system put into place in the First Republic (1961– 1975), under Gregoire Kayibanda (president until a 1973 coup), functioned as an apartheid system placing Tutsis in education and government jobs. While international protests against apartheid were voiced loudly against South Africa, they were largely silent about Rwanda and Kosovo. Rwanda’s First Republic ended with massive slaughters of Tutsis. During the First Republic, Rwanda lost over one half of its Tutsi population to refugee flight, primarily to Uganda but also to other neighboring countries. Kayibanda’s army chief of staff, General Juvenal Habyarimana, seized power and ended the anti-Tutsi pogroms. As president of the Second Republic Habyarimana abolished the First Republic’s ‘national Hutuism’. He granted citizenshipto resident Tutsi but not to those Tutsis who had fled, mainly to Uganda. In 1986, the Museveni regime in Uganda changed citizenship requirements from ancestry to residence. The Ugandan Diaspora group formed the 10

See R. Falk 'The Right of Self-Determination Under International Law: The Coherence of Doctrine Versus the Incoherence of Experience' in W. Danspeckgruber and A. Watts (eds.) Self-Determination and Self-Administration: A Sourcebook. (Lynne Rienner Publishers, Inc., Boulder, CO, 1997) pp. 47–63. 11 See Appendix B.

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PARADOXES OF AUTONOMY: TENSIONS, TRAPS AND POSSIBILITIES bulk of the Rwandan Patriotic Front (RPF). However, the Museveni government, for internal political reasons, reversed the citizenship policy and made members of the RPF refugees in Uganda. The Tutsi guerrilla fighters found themselves between the Rwandan devil and the Ugandan deep sea. The 1990 RPF invasion symbolized an attempt to escape the closing scissors of a postcolonial citizenship crisis in Rwanda and Uganda.12 The 1993 Arusha Accords, designed to end the civil war brought about by the 1990 RPF invasion, required the repatriation of Tutsi refugees to Rwanda. This brief account illustrates the complex interplay of citizenship, internally and externally determined. Further, it demonstrates the critical aspects of the political solidification of Tutsi identity over roughly a thirty-year period. As a stopgap measure, granting an interim autonomy (deliberative or humanitarian autonomy, as described below) to Butare, a region with the heaviest concentration of Tutsis within Rwanda, might have helped to stem the tide of brutality. While some would regard another proposal as insanely utopian, the idea of a regional Central African citizenship as a counter-balance to ethnic autonomy had and has a great deal of potential. As discussed below, the regional organization that made proposals on autonomy for Southern Sudan might serve as a model. 4. AUTONOMY’S VALUES AND THEIR PARADOXES Autonomy has three primary justifications: communitarian, democratic, and protective. These justifications can be formulated, respectively, as follows: autonomy promotes identity with a community (group); autonomy enhances democratic participation; and autonomy protects groups.13 The following paradoxes arise within each justification: communitarian autonomy includes a group while at the same time it excludes other groups; democratic autonomy enhances and stifles democracy; and protective autonomy protects those groups least in need of protection. The protective paradox can be put more pointedly as follows: autonomy is most needed when least viable and least needed when most viable. Understanding the paradoxes, analyzed below, should stimulate more carefully analyzed but also more creative proposals about autonomy than the ones that dominate the literature. Community and Communitarian Autonomy. An underlying goal of autonomy regimes is to enable and to enhance individual development within a group. According to communitarian political theory, individuals find meaning in their lives against a background of culture and tradition. Their roles in a group provide them with access to culture and tradition. People define themselves within the context of a community or group. ‘Who they are’ depends upon belonging to a community. ‘Minority’ designates one type of community through which people find meaning for their lives. Collective autonomy provides a means to protect this, at times, 12

M. Mamdani, When Victims Become Killers (University Press, Princeton, 2001) p. 38. For illustrations of these values with international legal documents see H.-J. Heintze ‘New Directions in the Approach of the OSCE High Commissioner on National Minorities’ in this volume. 13

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THOMAS W. SIMON vulnerable source of meaning. In the United States, the Amish receive constitutional and other forms of protection. In Canada, the controversy over Quebec’s secession involves claims for communitarian autonomy, that is, protection for Canada’s francophone culture.14 Paradoxically, autonomy protects and rewards one community at the expense of other communities. While autonomy enables one group to flourish, it, at the same time, puts other communities in less favorable lights.15 A state may single out some communities by granting special privileges to them. Some eastern European states have granted forms of autonomy to certain minority groups. The Slovenian constitution gives special rights to its Italian and Hungarian ethnic minorities. In many ways, the designation of one group downgrades other groups. Suddenly, after the designation of one group, other groups do not have something valuable. The non-designated groups do not have whatever benefits the one group gained by its designation. When Slovenia granted autonomy to Italians and Hungarians, it imposed a deficit on non-designated groups. For example, a group of non-Italian citizens (‘Slovenian Istria’) challenged a voting scheme that gave members of the Italian ethnic community a double vote. Slovenia’s Constitutional Court rejected their claim that these special measures discriminated against Slovenes and that they helped to ‘Italianize’ part of Slovenia.16 As the example shows, often, special measures for one group produce a troublesome reaction by a relatively new group. To put the paradox more starkly, communitarian autonomy simultaneously includes and excludes. The drawing of an inclusive circle around individuals within one group automatically erects an excluding border for individuals outside the circle. When the autonomous boundaries are territorial, a new majority and a new minority often arise within the borders. The creation of Vojvodina and Kosovo as autonomous units within the Former Yugoslavia created new group-demographics. Hungarians within Vojvodina and Albanians in Kosovo became new majorities relative to a new Serb minority in each unit. As noted before, over twenty per cent of the Serbs of the Republic of Serbia, then, no longer fell under Belgrade’s control. The rest, some skeptics might say, is history. The distinction between cultural and territorial autonomy raises another communitarian paradox, which, in turn, overlaps with the protective paradoxes 14

See the excellent survey and discussion by M. H. Giroux, ‘The Canadian Charter of Rights, Nationalism and the Question of Autonomy in Quebec’ in this volume. 15 ‘Because the new ‘us’ often becomes just another framework that appears to limit the freedom of the individual, of the real ‘self’, the perception of a new ‘them’ is prompted, and hence the formation of a new ‘us’, for the further pursuit of the aspired-to ‘freedom’ and ‘good life’. And so a quest for self-determination evolves, with anther new ‘us’; and then another, possibly as infinitum’ (D. Ronen, Quest for Self-Determination as quoted in A. Etzioni ‘Commentary’ in W. Danspeckgruber and Sir A. Watts, (eds.) Self-Determination and Self-Administration: A Sourcebook (Lynne Rienner Publishers, London, 1997), p. 391). 16 C. Ribicic ‘Constitutional and Legal Status of Italian and Hungarian Ethnic Communities in the Republic of Slovenia’, in M. Zagar, B. Jesih and R. Bester (eds.) The Constitutional and Political Regulation of Ethnic Relations and Conflicts (Institute for Ethnic Studies, Ljubljana, Slovenia, 1999) p. 233.

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PARADOXES OF AUTONOMY: TENSIONS, TRAPS AND POSSIBILITIES described below.17 Faced with a choice between cultural and territorial autonomy, it seems easier (especially from the viewpoint of someone outside the community in question) to justify cultural (functional) than territorial autonomy. Cultural autonomy poses less of a threat to others and to the state than territorial autonomy does, and it seems less likely to lead to serious conflicts within a state. Yet, although relatively non-threatening, cultural autonomy has the downside of protecting ‘the least with the least’. Cultural autonomy offers mild protection of relatively innocuous features of a minority’s identity. In contrast, although more potentially threatening, territorial autonomy protects ‘more with more’. Territorial autonomy offers stronger protection of more aspects of those things considered of value by the minority group. The distinction between cultural and territorial autonomy begins to blur, as some examples show, especially when we add self-governance to the mix. The Slovak Constitution guarantees linguistic rights to its Hungarian minority, but it provides for only ad hoc participation on affairs concerning the minority. In comparison, Slovenia’s Constitution includes provisions not only guaranteeing linguistic rights and special rights regarding education to the Italian and Hungarian communities but also for the continuous participation of minorities representatives in local and state legislative bodies. Further, in the Italian and Hungarian regions, members of these communities may establish their own self-governing bodies for the realization of their rights.18 By working through examples like these, it seems reasonable to conclude that the more territory based the autonomy is, the greater the protection it provides. A cultural autonomy regime that includes the protection of linguistic rights provides a modicum of protection. The following exemplifies a cultural autonomy protection: members of minorities should not be discriminated against for speaking their minority language. This linguistic right attains greater status when coupled with a right to educate in the minority language. The move from language rights to education rights, however, represents a step towards territorial autonomy, not in the full sense of minority governance over a specific territorial region but in the sense of minority governance over a school district. In conclusion, then, advocates of cultural autonomy need to overcome the impression that their proposals are designed only to quiet demands by minorities. If they have a full commitment to cultural autonomy, then it seems that they should propose stronger protective measures, including territorial autonomy.

17 The distinction between cultural and territorial autonomy underlies the Lund Recommendation on the Effective Participation of National Minorities in Public Life (1999) (Foundations of Inter-Ethnic Relations, The Hague, 1999). For a discussion of the document see G. Alfredsson, ‘Lund Recommendations’ this volume. For an initial defence of the distinction see A. Eide, ‘The Common and the Separate Domains within the State -Cultural Autonomy and Territorial Democracy’ this volume. 18 M. Zagar and A. Novak ‘Constitutional and International Protection of National Minorities in Central and Eastern Europe’, in M. Zagar, B. Jesih, and R. Beste (eds.), The Constitutional and Political Regulation of Ethnic Relations and Conflicts, (Institute for Ethnic Studies, Ljubljana, Slovenia, 1999).

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THOMAS W. SIMON As with each value underlying autonomy, the paradoxes do not pose insurmountable obstacles. However, by exposing the paradoxes, we highlight the need to approach the issues more sensitively, with a clearer conceptual perspective, and with a greater appreciation for complexity. Democracy and Democratic Autonomy. Commentators on international law increasingly rely on democratic values to justify collective autonomy. Democracy serves as the fall back rationale for autonomy. As they point to numerous cases of ethnic conflict, many commentators express suspicions about the community values thought to underlie autonomy. While an appeal to community engenders controversy, a democratic justification seems incontrovertible. The following seems to be a truism: autonomy enhances democratic participation. New grants of autonomy seem to confirm the claim. Autonomy has given Scotland greater democratic participation and more effective control of its affairs than it had previously within a more centralized United Kingdom. Yet, things are not what they seem even for the democracy advocate. While commentators readily acknowledge democratic justifications for autonomy, they do not agree about the depth and extent of democracy as applied to autonomy issues. The literature on autonomy contains little discussion of the following questions: (1) to what extents are autonomous arrangements democratically determined by those most immediately affected? (2) To what extent should they be so informed? It is one thing to promote the development of selfgovernment or democracy within an autonomous unit and quite another to advocate the democratic formation of autonomous units. An externally imposed autonomy does not preclude the emergence of democratic governance within an autonomy arrangement. In fact, in some cases, the possibility of internal self-governance may depend on an imposed autonomy. Oddly, democratic autonomy may also stifle democracy. Although this currently does not seem to be the case, nevertheless, it is conceivable that the arrangement in Scotland may have decreased Scotland’s overall power considerably. If autonomy gives a group greater control over fewer or less valuable resources than before, its democratic benefits seem suspect. Whatever the long-term affects of autonomy might be, it is clear that attempts to increase democratic participation through autonomy creates tensions between the autonomous part of the political system and many other parts of the political system, including its overall structure. The most pernicious effects of promoting democracy through autonomy may remain hidden. Democratic structures may be implanted at the expense, literally and figuratively speaking, of economic well-being.19 Bosnia-Herzegovina, for example, has an incredible array of democratic devices and institutions.20 Yet, largely ignored in the discussions, Bosnia-Herzegovina also has an incredibly high unemployment rate and an embarrassing low rate of foreign investment. Calls for more equal 19

See T. Simon, ‘The Injustice of Procedural Democracy’ in F. Bieber and D. Sokolovic (ed.s.), Bosnia-Herzegovina and Southeastern Europe (Ashgate, London, 2000). 20 For a detailed description of Bosnia see M. Weller, ‘Autonomy and Self Governance in the Balkans’ this volume.

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PARADOXES OF AUTONOMY: TENSIONS, TRAPS AND POSSIBILITIES participation among groups in a state’s economy must first address the state of the economy itself. Before or in tandem with addressing the economic disparity between the Republic of Srpska and other parts of Bosnia-Herzegovina, the desperate state of the entire economy needs to be faced. One final consideration, connected to the protective form of autonomy discussed next, raises a disturbing possibility. Democracy may fuel rather than abate conflicts.21 Democratic justifications of autonomy seem particularly vulnerable to this charge. Given that any form of collective autonomy will make some basic distinctions along group lines, any accompanying proposal for democracy seems committed to carving at least some political units according to group affiliation. A democratic justification would have to accept some overlap between demos and ethnos.22 Any democratic justification of autonomy then becomes open to the possibility of ethnic democracy, which, in turn, creates potentials for group conflicts. Again, the paradoxes and difficulties do not undermine a democratic based autonomy. However, it should put caution to the wind whenever we appeal to an unanalyzed sense of democracy. Although ‘democracy’ may have a more secure meaning than ‘autonomy’, democracy is also a contested concept. Protection and Protective Autonomy. In addition to the communitarian and democratic functions, autonomy has a protective role to play in the international system. Past and current cases where autonomy might apply reveal a disturbing pattern. The following paradox applies to minority rights regimes and secession claims as well as to autonomy schemes. Autonomy is most needed when least viable, and autonomy is least needed when most viable. The past case of Biafra23 and the current case of Chechnya illustrate the first part of the paradox. The parallel cases of Katanga24 and Quebec provide evidence of the second part. Relative to 21

For a provocative defence of this thesis see J. Snyder, From Voting to Violence: Democratization and Nationalist Conflict (W. W. Norton & Company, New York, 2000). 22 ‘The word “democracy” has roots other than demos, the people. It also has important historical connections to demes, the political units designed by Cleisthenes to bring about democratic reforms of the constitution in ancient Greece. So, democracy not only ties closely to "the people," it also raises questions about the best unit of governance. Cleisthenes tried to break up traditional tribal boundaries as the units of governance and replace them with demes, which cut across tribal boundaries. He saw demes as a mechanism for inculcating a general sense of citizenship.’ Thomas Simon, Democracy and Social Injustice (Rowman & Littlefield, Lanham, MD, 1995) p. 258. 23 In May 1967, Biafra proclaimed secession from Nigeria, initiating a thirty-month civil war that cost many lives. Severe harms directed at the Ibo preceded the secession demand. In July 1966, hundreds of Ibo military officers and enlisted men were assassinated in retaliation for the January 1966 coup of Ibo majors. September to October 1966 marked the period of pogroms in northern Nigerian cities, resulting in the deaths of 6–30,000 Ibos and the displacement of over a million Ibos. 24 In 1960, the newly declared independence of the Republic of Congo immediately faced a secessionist movement by its southern-most province, Katanga. With only 13 per cent of the Congo’s population, Katanga had most of the country’s wealth. The United Nations immersed

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THOMAS W. SIMON Katanga and Quebec, the political units of Biafra and Chechnya are extremely weak and vulnerable. Given their vulnerability and instability, they stood or stand in desperate need of protective shields offered by devices like autonomy. Comparatively, Katanga and Quebec contain powerful political organizations capable of forming and maintaining their own protective shield. Paradoxically, special measures, autonomy, and even secession, generally, have a greater chance of becoming a reality for groups least in need of them. These measures have the least chance of implementation where group members stand in danger of grave harm. This describes a political reality that becomes further entrenched by a failure to question it. Another paradox related to the protective function of autonomy is the following: autonomy represents the best choice for preventing conflict, and autonomy represents the worst choice for preventing conflict. I shall not say a great deal about this version of the protective paradox since it depends almost exclusively on counterfactual conjectures. I have already mentioned how interim autonomous status for Slovenia and Croatia may have been the best of a number of bad choices, assuming the availability of choice.25 In parallel fashion, some commentators have argued that the referendum for some form of independence for Bosnia-Herzegovina was the worst of a number of bad choices. It would complicate matters unnecessarily to examine the relationships among the values of community, democracy, and protection. However, the contrast between the values of community and democracy with the value of protection merits attention. A strong emphasis on community and democracy puts the legislature at the center of the discussions. Proportional representation, including quotas for minority representatives, within an autonomous region promotes community and democracy. In contrast, a focus on the protective function of autonomy places the judiciary at the center of the debates. When considering what autonomy mechanisms would help minorities the most, the discussions seldom turn to the judicial aspects of self-governance. While providing a minority with its own legislature seems plausible, allowing a minority to form its own court system seems preposterous. Yet, the initial negative reaction misses the point. A focus on the judiciary does not lead to a call for a complete overall of a court system. Lower-level adjudication devices could produce significant results. Specific measures to aid minorities in settling grievances, internally and externally, deserve more serious attention.26

itself in the controversy, ultimately helping to stifle Katanga’s secessionist aspirations. Katanga’s wealth status stemmed from its unsavoury associations with neo-colonialism and mining interests. 25 See C. C. Hodge, ‘Botching the Balkans: Germany’s Recognition of Slovenia and Croatia’. 26 Rwanda, for example, has turned to a traditional court system called ‘gacaca’ to deal with the over one-hundred thousand Hutus jailed for participation in the 1994 genocide.

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PARADOXES OF AUTONOMY: TENSIONS, TRAPS AND POSSIBILITIES 5. TYPES OF AUTONOMY Autonomy has different conceptual types. Differentiating among the types helps to clarify already known, but previously confused distinctions. Further, the classification schema provides an opportunity to examine seemingly new forms of autonomy. None of the types described below represents an entirely new category. Each type has a basis in international law. The previous discussions of related concepts and paradoxes prove helpful in constructing the categories. The exercise has the added benefit of stimulating legally sound creative thought. Each section ends with a recommendation. Legal (De Jure) Autonomy. Legal autonomy should come first, particularly since debates over autonomy often ignore it despite its centrality to international law and international relations. Many states already have designated certain cultures and territories with some form and degree of autonomy. Subsequent discussion of autonomy should build upon or start with de jure autonomy. The importance of adhering to the rule of law, substantively and procedurally, cannot be emphasized enough. The failure to acknowledge the legal substance of autonomy and the refusal to follow procedures set forth or required by law can have disastrous results. No matter what one may think of a state granting cultural or territorial autonomy to a minority, once a state has enacted legislation or judicially examined provisions on minorities, those measures and decisions must be fully respected, internally and externally. This does not imply strict adherence to the status quo. Instead, it argues for peaceful change as opposed to violent disruption. Interestingly, justifications for humanitarian intervention in Kosovo contain comparatively few reference to the violation of Kosovo’s previous legal autonomous status, first as an autonomous region (1946), then as an autonomous province (1963), and finally as a federal unit (1974). 6. RECOMMENDATIONS 1. States should recognize, internally and externally, already existing forms of autonomy. 2. Change in autonomy should come about through lawful and peaceful means. Reciprocal Autonomy. A grant of autonomy within one state may be conditioned on a grant of autonomy in another state. If implemented, reciprocal autonomy would fall under the heading of a de jure form of autonomy that warrants respect. Getting to the point of mutual designation, however, presents major obstacles to reciprocal autonomy. At times, reciprocal autonomy may represent an unstated goal. Slovenia, for example, granted autonomy to its Italian and Hungarian minorities to encourage other states to protect their Slovene minorities. The Slovak government under its first prime minister, Vladimir Mecier, conditioned making concessions to its Hungarian minority on Hungary doing the same for the (comparatively few?)

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THOMAS W. SIMON Slovaks residing in Hungary.27 Even more bizarrely, Austria parried Slovenia’s push for autonomy for its Slovene nationals in Austria by a demand that Slovenia grant autonomy to the (effectively non existent?) German minority in Slovenia.28 The process of attaining reciprocal autonomy contains many of the tensions and paradoxes noted in the previous discussions. The process of promoting one community or minority and the policy of seeking protection for another community or minority conjoin to increase the likelihood of conflict. The externally (NGO) negotiated agreement between the Romanian government and its Hungarian minority may serve as a better model than any form of reciprocal autonomy. Nevertheless, the idea of reciprocal autonomy has the virtue of treating autonomy issues dynamically. While filled with warning signs, reciprocal autonomy merits consideration under carefully limited circumstances. Recommendation: Demands for reciprocal autonomy between states should be approached and examined with great care. Variegated Autonomy. The category of variegated autonomy more fully captures the lessons about the dynamic character of autonomy. No matter what form autonomy takes, it helps to remember its dynamic character. Autonomous devices do not operate in isolation. While we tend to think of autonomy as, in some sense, freezing relations among political segments of society, autonomous arrangements change over time and reverberate into other areas. A different way of thinking might take better advantage of the dynamic character of autonomy. A more holistic view, for example, treats autonomy as part of a bigger package of political configurations. To offset the inward-looking tendencies of a territorial autonomous arrangement a holistic perspective might include proposals for more outward-looking regional arrangements and affiliations. A grant of autonomy to a minority, then, could be coupled with giving individuals an additional option of formalizing larger, regional affiliations. A combination of local group affiliation and a regional one has emerged as the choice of many young people throughout many newly independent states in Europe. Another fruitful way to utilize the dynamic qualities of autonomy lies in first recognizing that group identity does not need to focus on a single group. Socially, individuals often find themselves negotiating among multiple group identities. Although minority identity is not entirely malleable, group membership, politically 27

The Hungarians opposed the Slovak Republic’s admission into the Council of Europe because of the unprotected state of ethnic Hungarians in Slovak Republic. The Slovaks countered by making the granting of rights to ethnic Hungarians in the Slovak Republic contingent upon the Hungarians granting similar rights to the ethnic Slovaks in Hungary. Hungarians comprise over 10 per cent of the Slovak Republic’s population; estimates of the number of Slovaks residing in Hungary vary from tens to hundreds of thousands. S. Pufflerova, ‘National Minorities in Slovakia’, Unpublished manuscript (September 1993). 28 In Slovenia’s 1991 census, 546 citizens identified themselves as German and 182 as Austrian. Balkan Report, Vo. 6, No. 11 (1 March 2002).

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PARADOXES OF AUTONOMY: TENSIONS, TRAPS AND POSSIBILITIES and legally, could be more open-ended. The full recognition of multiple identities would make territorial autonomy less rigid and less threatening to the stability of the state. Further, the greater used of the dynamic, interactive qualities of autonomy brings it closer to integrationist approaches.

Recommendation: States should treat autonomy more holistically as a dynamic, multi-dimensional arrangement. Deliberative (De Facto) Autonomy. The next type of autonomy recognizes situations where the semblance of a territorial autonomy serves as a means to build greater protection and as a way to enhance self-governance. The example of Kosovo helps to establish or at least to recognize an important de facto form of autonomy. To make a case for deliberative autonomy all one has to do is to ask the following embarrassing question about Kosovo’s current status within international law: is Kosovo an independent state or an autonomous unit within the current state of Yugoslavia? In reality, Kosovo qualifies neither as an independent state nor as an internally autonomous unit. Kosovo has an external autonomy. States generally have come to recognize Kosovo’s odd status, and, of course, some of the most powerful states currently ‘normatively’ guide and support Kosovo as a quasi- or semiautonomous unit. Although Kosovo represents an embarrassing loophole in international law, its odd status also opens a door of opportunity for states to acknowledge another form of autonomy. Deliberative autonomy signifies a temporary, interim form of autonomy. External support by states for this autonomy form creates a critical breathing space for deliberation and for establishing a fully functioning political unit. Whatever the future holds for Kosovo, its deliberative autonomy status has put it into a better position to negotiate for its future than it had before. There are some similarities between Kosovo and the (benign?) occupation of defeated Japan by the victorious United States. The analogy, however, should further remind us to remain cautious of unwittingly opening doors for states to impose autonomy on portions of weaker states. However, an externally supported deliberative autonomy may serve as a means to establish a peaceful interlude in, for example, strife-ridden Sudan.29 International and regional organizations as well as other states could propose

29

The Kurds in Iraq (comprising thirty per cent of Iraq’s population) also live in a de facto autonomous region under U.S-U.N. protection. The complexities of the situation for the Kurds are well documented. A novel argument against independent status for Iraq’s Kurds is ‘Were they to break away, they would leave a Sunni minority to face a Shiite Arab majority in what remains of Iraq. Because the bulk of Iraqi Kurds are Sunni, they represent an element of security for the Sunni Arabs.’ John Waterbury, ‘Avoiding the Iron Cage of Legislated Identity’ in W. Danspeckgruber and Sir A. Watts (eds.) Self-Determination and SelfAdministration: A Sourcebook (Lynne Rienner Publishers, London, 1997) p. 387.

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THOMAS W. SIMON deliberative autonomy status for Southern Sudan as a means to broker peace and to enable the parties to enter into deliberative dialogue.30 Chechnya provides a further possibility for deliberative autonomy. Whatever the complications and complexities, the untold devastation in Chechnya should increase feasible proposals. Recently, Yvegeni Primakov, former prime minister of the Russian Federation, proposed another autonomy regime for Chechnya, modeled on the quasi-autonomous status of Finland as a grand duchy under the Romanov Russian Empire.31 However, even the only serious former rival to Putin for the Russian presidency could not bring himself to include a call for external help in the Chechen conflict. Recommendation: States and other organizations are encouraged to give active support to potential and emerging autonomous territorial unites especially where a deliberative autonomy would help end or dissipate severe conflict. Humanitarian Autonomy. Autonomy and humanitarian law seldom, if ever, work in tandem. Yet, the time has come to associate autonomy’s protective function and humanitarian intervention in creative and constructive ways. Some situations, such as when a minority faces serious harms, cry out for something like humanitarian autonomy. When a minority faces mass destruction, short of attributions of genocide, then international law should obligate external intervention. Under these circumstances of grave danger to a minority, an external recognition of a minority’s autonomy rests on something akin to ‘a sacred trust of civilization’. Outside states should not await a de facto form of autonomy to emerge as they would in cases of deliberative autonomy. To whatever extent it is viable within international law and 30

I am not trying to underestimate the difficulties in making deliberative autonomy a reality in Southern Sudan. Various forms of autonomy for Southern Sudan have been tried. The first occurred under colonialism. British policies from 1926 to 1946 divided the Sudan, now the largest country in Africa, in a northern half populated by Arabic-speaking Islamic people and a southern half consisting of English-speaking Christian or native African-language-speaking inhabitants who practiced traditional African religions. The British discouraged contact between the two regions and did little to develop the south. ‘The Egyptian condominium rule, while objectionable in principle, gave the South the only period of peace, tranquillity, and relative independence in the form of ‘tribal’ autonomy that they had experienced in centuries.’ Francis M. Deng, ‘sudan: The Challenge of Nationhood’, in W. Danspeckgruber and Sir A. Watts (eds.), Self-Determination and Self-Administration: A Sourcebook (Lynne Rienner President Publishers, London, 1997) p. 345. In 1972, under Nimeiry, Sudan granted the southern provinces regional self-government. Regional autonomy unravelled through a series of decrees by the same President Nimiery. The last gap for a possible autonomy came in 1994 from a regional group. The Inter-Governmental Authority on Draught and Development formed the Mediation Committee of Ethiopia, Eritrea, Kenya, and Uganda. The committee, chaired by President Daniel arap Moi of Kenya, issued a Declaration of Principles, which, however, was not accepted. I would argue that this history sets a basis for a regionally and internationally administered deliberative autonomy. 31 W. Pfaf, ‘Peacemakers Show the Way’, International Herald Tribune (19 March 2002).

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PARADOXES OF AUTONOMY: TENSIONS, TRAPS AND POSSIBILITIES plausible within international politics, external agents should then ‘impose’ humanitarian autonomy on behalf of a vulnerable group. In some cases, neither the state nor the minority group might agree to this form of intervention. In other cases, the state and the minority might welcome humanitarian autonomy. Again, humanitarian autonomy should not automatically open doors to any kind of intervention. However, the recent escalation of harm inflicted upon Palestinians by Israel provides a vivid example of the critical need to consider humanitarian autonomy. Recommendation:

International

law

should

formulate

an

obligation

for

humanitarian autonomy under certain limited conditions of harm directed against a minority. 7. CONCLUSION To the extent that this largely conceptual analysis has clarified thinking and stimulated creative thought, it may lay claim to a modicum of success. The proposals represent attempts to demonstrate the importance of theoretical approaches. The idea of autonomy provides a rich field for theoretical reflection. However, the stakes are high. Any theoretical explorations should translate readily but cautiously into law and policy. The concept of autonomy contains paradoxes, tensions, dilemmas, and other difficulties. These challenges should make us wary but not dismissive of the use of autonomy. Autonomy does not provide a conceptual, legal, or political safe-haven, but neither do many of the other concepts, including democracy, commonly used to address conflict. There are no conceptual safe zones. The lesson to be learned here is not to put theory aside and deal with the issues on a case-by-case basis. Piecemeal, ‘legal engineering’ employs theory or, more often, theories but in unanalysed forms. The discovery of conceptual difficulties should produce a demand for more theory; the issues posed by autonomy demand attention, theoretical and practical. Given our relative state of well-being enjoyed by those privileged to engage issues in this manner, we should take risks for others. The Danish Human Rights Centre, despite having its autonomy threatened, has provided opportunities for us to risk thinking anew about autonomy.

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THOMAS W. SIMON APPENDIX A Former Yugoslavia TYPES OF AUTONOMY 1946 1963 1974 Republics Serbia, Croatia, Slovenia Bosnia-Herzegovina Montenegro, Macedonia Kosovo (to 1990) Autonomous Provinces Vojvodina [Kosovo] Autonomous Regions Kosovo TYPES OF INTERNAL CITIZENSHIP 1946 1963 1974 Nations Serbs, Croats, Slovenes Bosnians Montenegrins, Macedonians Nationalities Albanians Bosnians Other Bosnians (Bosnian Muslims) Jews Yugoslavs APPENDIX B Rwanda and Uganda TYPES OF EXTERNAL CITIZENSHIP 1961: Rwanda, First Republic, Kayibanda ‘national Hutism’ 1975: Rwanda, Second Republic, Habyarimana citizenship for national Tutsis, residency 1986: Uganda, Museveni citizenship from ancestry to residency 1990: Uganda, Museveni reversed citizenship, residency to ancestry APPENDIX C Paradoxes of Autonomy COMMUNITARIAN PARADOX Justification for Autonomy: cultural identity Related Concepts: rights of minorities, cultural versus territorial autonomy Thesis: Autonomy enables individuals to develop within a flourishing community. 208

PARADOXES OF AUTONOMY: TENSIONS, TRAPS AND POSSIBILITIES Historical Cases: Kosovo and Vojvodina in Former Yugoslavia Contemporary Cases: Italian and Hungarian Ethnic Communities in Slovenia Antithesis: Autonomy rewards one community at the expense of other communities. Contemporary Cases: Romani throughout Eastern Europe. Resolution: Grants of autonomy status to one group should be done holistically, that is, in conjunction with policies that address other groups. DEMOCRATIC AUTONOMY Justification for Autonomy: democracy Related Concepts: susidiarity (decisions made at lowest feasible level) Thesis: Autonomy enhances democratic participation. Contemporary Case: Scotland Antithesis: Autonomy fosters democracy based on exclusion. Contemporary Case: Bosnia-Herzegovina Resolution: Autonomy should enhance participation, locally and nationally, within and outside the region. Test Case: Catalonia PROTECTIVE AUTONOMY Justification of Autonomy: protection Related Concepts: secession Thesis: Autonomy is most needed to protect groups when least likely to be implemented. Historical Case: Biafra Contemporary Case: Chechnya Antithesis: Autonomy is least needed to protect groups when most likely to be implemented and maintained. Historical Case: Katanga Contemporary Case: Quebec Resolution: Autonomy should have initiatives and supports, internally and externally. Test Cases: Kosovo, Southern Sudan APPENDIX D Types of Autonomy LEGAL (DE JURE) AUTONOMY Many states already have already designated certain cultures and territories with some form and degree of autonomy.

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THOMAS W. SIMON Recommendations. States should recognize, internally and externally, already existing forms of autonomy. Change in autonomy should come about through lawful and peaceful means. RECIPROCAL AUTONOMY A grant of autonomy within one state may be conditioned on a grant of autonomy in another state. Recommendation. Demands for reciprocal autonomy between states should be approached and examined with great care. VARIEGATED AUTONOMY Autonomous arrangements change over time and reverberate into other areas. Recommendation. States and others should treat autonomy more holistically as a dynamic, multi-dimensional arrangement DELIBERATIVE/INTERIM (DE FACTO) AUTONOMY In some situations, the semblance of a de facto territorial autonomy may serve as a means to build greater protection and as a way to enhance self-governance. Recommendation. States and other organizations are encouraged to give active support to potential and emerging autonomous territorial unites especially where a deliberative autonomy would help end or dissipate severe conflict. HUMANITARIAN AUTONOMY When a minority faces mass destruction, short of attributions of genocide, then international law should obligate external humanitarian intervention to establish an interim “sacred trust of civilization”. Recommendation. International law should formulate an obligation for humanitarian autonomy under certain limited conditions of harm directed against a minority.

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AUTONOMY AND CULTURAL RIGHTS THE ARGUMENT OF CULTURAL DISADVANTAGE Juha Räikkä 1. INTRODUCTION Judging from the recent philosophical literature, one might conclude that differenceblind public policy is a thing of the past.* However, defining the status of cultural and other minority groups has become one of the main tasks of political philosophers, and most theorists take it for granted that many laws should be membership-sensitive rather than membership-blind. Groups have different identities, and they need – and are morally justified in having – group-differentiated legal rights, rights that are their rights. In multicultural societies, the notion of toleration is not useless, but it is insufficient, i.e. if it is not radically reinterpreted. What is needed is politics of recognition, politics of difference, a theory (or theories) of group representation, and a theory (or theories) of multicultural citizenship. In the age of diversity, the traditional doctrine of separation of state and group-identity should be rejected.1 While the general tendency in recent political theory is clear enough, there are many large questions that remain open. These open questions range from the grounds of membership-sensitive public policy (why is difference-blind public policy not morally justified?), to the limits of group-differentiated legal rights (which rights are morally justified?), and to the eligibility problem (which groups are justified in having special legal rights?). A more specific question that has a direct bearing on the main questions and that has achieved considerable attention in the discussion is the question of whether the fact that the cultural market-place leaves some cultural minority groups at a disadvantage is a relevant feature when formulating the public policy of a multicultural society. Should a group be supported by group-differentiated legal rights if its group culture is undermined by the * I would like to thank John F. Corvino (Wayne University), Alon Harel (The Hebrew University Jerusalem) and Mikko Wennberg (University of Turku, Finland) for helpful comments and written suggestions for earlier version of this article. An earlier version of this article is published in 78 Australasian Journal of Philosophy (2000). I am grateful to have their permission to publish this version. 1 See e.g., W. Kymlicka, Liberalism, Community, and Culture (Clarendon Press, Oxford 1989), I. Marion Young, Justice and the Politics of Difference (Princeton University Press, Princeton, 1990), C. Taylor et al., Multiculturalism and ‘The Politics of Recognition’ (Princeton University Press, Princeton, 1992), and W. Kymlicka, Multicultural Citizenship (Clarendon Press, Oxford, 1995).

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JUHA RÄIKKÄ economic, technical and political decisions made by the majority? As is well known, both in Liberalism, Community, and Culture (1989) and in Multicultural Citizenship (1995) Will Kymlicka’s answer to this question is, with certain important reservations, ‘yes’.2 But many of his critics have argued that the right answer to the question is, with certain important reservations, ‘no’. In their view, referring to cultural disadvantage in the justification of minority rights leads to serious difficulties; while many cultural groups are justified in having special rights, these rights cannot be justified by the disadvantage criterion.3 In the next few pages, I would like to analyze the nature and varieties of the argument of cultural disadvantage, as I shall call it. In particular, I try to show how it differs from the alternative argumentative patterns for minority rights. It is not my intention to interpret and comment upon Kymlicka’s theory, although the present discussion is certainly relevant both for his arguments and especially for his critics’ objections. My ultimate aim here is to say something important regarding questions about how the argument of cultural disadvantage can be defended and what the limits of the argument are. 2. VARIETIES OF THE ARGUMENT OF CULTURAL DISADVANTAGE Most arguments for group-differentiated legal rights aim to show that in certain cases membership in a group is a relevant feature that indicates that the group (i.e. its members) should have a right that other members of the society do not have and are not justified in having. According to these arguments, for instance, Jews and Muslims may have exemptions from animal slaughtering laws, disabled people may have a right not to follow the usual parking regulations, some ethnic groups may have exemptions from sex discrimination legislation, and some aboriginal groups may have a special right to hunt endangered species. Other arguments for groupdifferentiated rights defend the view that the majority of a society should provide, at 2

Kymlicka, Liberalism, Community, and Culture, ibid., esp. pp. 182−205; Kymlicka, Multicultural Citizenship, ibid., esp. pp. 94−106, 144−147. 3 The notion of cultural disadvantage, as used by Kymlicka, is evaluated for instance in J. R. Danley, ‘Liberalism, Aboriginal Rights, and Cultural Minorities’, 20 Philosophy and Public Affairs (1991) pp.168−185, esp. p. 175; W. Cooper, ‘Critical Notice of Liberalism, Community, and Culture’, 23 Canadian Journal of Philosophy (1993) pp. 433−452, esp. p. 438; C. Taylor, Multiculturalism and ‘The Politics of Recognition’, 40–41fn; G. Brahm Levey, ‘Equality, Autonomy, and Cultural Rights’, 25 Political Theory (1997) pp. 215−248, esp. pp. 219–224; J. Nickel, ‘Review on Multicultural Citizenship’, 93 The Journal of Philosophy (1996) pp. 480–482; C. Kukathas, ‘Multiculturalism as Fairness’, 5 The Journal of Political Philosophy (1997) pp. 406-427, esp. p. 411; M. Galenkamp, ‘The Rationale of Minority Rights: Wishes Rather than Needs?’ in J. Räikkä (ed.), Do We Need Minority Rights? (Martinus Nijhoff Publishers, The Hague, 1997), pp. 41−57, esp. p. 43−44; J. Waldron, ‘Minority Cultures and the Cosmopolitan Alternative’, in W. Kymlicka (ed.), The Rights of Minority Cultures (Oxford University Press, Oxford, 1995) pp. 93−119, esp. pp. 105−110; A. Favell, ‘Applied Political Philosophy at the Rubicon: Will Kymlicka’s Multicultural Citizenship’, 1 Ethical Theory and Moral Practice (1998) pp. 255−278.

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THE ARGUMENT OF CULTURAL DISADVANTAGE least partly, certain services for minorities, even if the majority itself is not interested in those services. These arguments include the claim that linguistic minorities should have a legal right to use their own language in court houses and the claim that sexual minorities should have a legal right to their own social services that concern sexuality. Both linguistic and sexual rights can be said to be groupdifferentiated rights, because even if all citizens are justified in having these rights, they are not – even in principle – interested in using them. These rights exist just because there are linguistic and sexual minorities. Arguments for group-differentiated legal rights are not arguments for mere toleration. In one traditional sense (there are many), toleration does not incur costs for the party who tolerates – except that it may be unpleasant to live in a society that allows practices of which one disapproves, say, sexual discrimination, ritual animal slaughtering or sadomasochistic behaviour.4 No doubt, toleration in the traditional sense may incur moral costs. For instance, if ritual animal slaughtering is tolerated and if it is in fact morally wrong, then tolerating ritual animal slaughtering incurs moral costs (which of course may be acceptable). However, group-differentiated legal rights incur costs not only in the latter sense but in the former one too. If members of a minority group have legal rights that no other citizen has, then rights are distributed unequally, which is presumably a (possibly acceptable) moral cost. But at the same time, it is a cost for the members of the majority too: they have fewer rights than the minority. Toleration incurs costs for the majority only if tolerated practices are permitted only for minority groups. When cultural rights, for instance, are carried out with special territorial rights, they limit the majority’s (but not the minority’s) right to move within the territory of the state. If the majority finances multilingual public services for linguistic minorities, or if ethnic associations are publicly supported, it is a cost for the majority. The main costs of group-differentiated rights are their domino effects, so to speak. Domino effects are the unintended, although often easily predictable, practical results of group-differentiated rights. These effects are both moral costs and costs for the majority. All sorts of group-differentiated rights may have domino effects; many group-differentiated rights in fact have domino effects. Linguistic rights, for instance, may help members of linguistic minorities go to good schools, get well-paid jobs, earn high social status, and live longer than members of the

4

For recent work on toleration, see e.g., G. P. Fletcher, ‘The Case for Tolerance’, 13 Social Philosophy and Policy (1996) pp. 229−239; M. Walzer, ‘The Politics of Difference: Statehood and Toleration in a Multicultural World’, 10 Ratio Juris (1997) pp. 165−176; D. H. Fisher, ‘Loyalty, Tolerance, and Recognition: Aspects of Morality in a Multicultural Society’, 31 The Journal of Value Inquiry (1997) pp. 339–351; S. Leader, ‘Toleration without Liberal Foundations’, 10 Ratio Juris (1997) pp. 139−164; R. Cohen-Almagor, ‘Why Tolerate? Reflections on the Millian Truth Principle’, 25 Philosophia (1997) pp. 131−152. See also K. Anthony Appiah, ‘The Multiculturalist Misunderstanding’, The New York Review of Books XLIV, 9 October (1997), pp. 30−36.

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JUHA RÄIKKÄ majority.5 Indigenous people’s special right to certain sources of livelihood may make them relatively wealthy, i.e. in comparison to majority members who live in the same area.6 Of course, the point of linguistic or cultural rights is not to cause injustices. But sometimes they do cause them, and in these cases the majority pays a remarkable price for the minority protection (which again, may be perfectly acceptable). Since group-differentiated legal rights are costly, they need specific justification. Those who defend unequal distribution of rights seem to have the burden of proof: if there is no reason to distribute rights unequally, they should be distributed equally. So how can group-differentiated rights be justified? The most common and perhaps intuitively most plausible argument for cultural group-differentiated legal rights is the argument of cultural disadvantage. The main idea of this egalitarian argument is simple. Because of the decisions made and practices adopted by the majority, cultural minorities are denied access to their own specific ethnic, national, linguistic or other sub-culture. Thus they are disadvantaged in realizing the good of cultural membership – whatever its form happen to be. But relevant group-differentiated legal rights promote egalitarian fairness and cultural equality by counteracting the superior power of mainstreamers. Therefore, those rights are morally justified. Although the main idea of the argument of cultural disadvantage is clear-cut, the argument has several varieties. It is crucial to distinguish between arguments that defend group-differentiated rights of minorities that are in a strongly disadvantaged position and arguments that defend group-differentiated rights of minorities that are in a weakly disadvantaged position. A cultural minority is in a strongly disadvantaged position if (and only if) without relevant group-differentiated rights its members are completely unable to use certain moral rights or common citizenship rights that the majority is easily able to use. A cultural minority is in a weakly disadvantaged position if (and only if) without relevant group-differentiated rights it is difficult and painful for its members to use certain moral rights or common citizenship rights that the majority is easily able to use. In their plain forms, the argument of cultural disadvantage for minorities that are in strongly disadvantaged position (A1) and the argument of cultural disadvantage for minorities that are in weakly disadvantaged position (A2) go as follows. (A1) Because of the fact X, there is a general moral right or a common legal citizenship right to Y. Without a group-differentiated legal right to Z, the members of group W are completely unable to use their right to Y. Therefore, group W is morally entitled to a group-differentiated legal right to Z (even if this may incur both moral costs and costs for the majority).

5

In Finland, members of the Swedish-speaking minority live longer than members of the Finnish-speaking majority. But the reason for this does not necessarily depend on minority rights. 6 In Norway, only Lapps can be reindeer-owners. It is only speculation that this will, as such, have effects of greater wealth.

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THE ARGUMENT OF CULTURAL DISADVANTAGE (A2) Because of the fact X, there is a general moral right or a common legal citizenship right to Y. Without a group-differentiated legal right to Z, it is difficult and painful for the members of group W to use their right to Y. Therefore, group W is morally entitled to a group-differentiated legal right to Z (even if this may incur both moral costs and costs for the majority). The following argument exemplifies version A2. Because one’s language is part of one’s identity, there is a moral right to use one’s own language in schools, for instance. But if minority languages are not publicly supported in schools, the only way members of linguistic minorities can use their own language in schools is for them to change their language to the majority language. However, this would be difficult and painful for the members of the minorities. Therefore, linguistic minorities should have publicly supported schools that use their own, original, language – even if this is a financial cost for the majority. All group-differentiated-rights arguments that are based on the view that cultural change – change of one’s language, communal membership, ethnic identity and so on – sometimes causes harm for the individuals who are asked to change, represent version A2 of the argument of cultural disadvantage. The easier it is for the members of a minority to assimilate to the mainstream, the weaker their disadvantaged position is. It is possible, perhaps even typical, that part of a given minority is in weakly disadvantaged position while another part of it is in a strongly disadvantaged position. The next example represents version A1. Because we do not know which religion, if any, should be followed, there is a general moral right to practice one’s own religion. But if Jews do not have exemptions from animal slaughtering laws, they are unable to practice their religion – and changing one’s religious beliefs, in the face of external forces, is practically speaking impossible.7 Therefore, Jews are justified in having the group-differentiated legal right to ritual slaughtering – even if this may cause animal suffering and mean that the majority has fewer rights than the Jewish minority. Both versions (A1−A2) of the argument of cultural disadvantage can be interpreted in four different ways. The above formulations suggest that the argument of cultural disadvantage says that disadvantage is a sufficient condition for relevant group-differentiated legal rights. But this is not the only way to use the argument. One might argue that cultural disadvantage is a necessary condition or a necessary and sufficient condition for special rights. Or one might claim that cultural disadvantage is simply relevant, although it is neither necessary nor sufficient for special rights. To make the discussion easier, let us give names to these separate interpretations of the argument of cultural disadvantage. 1. The Pure Disadvantage Criterion. Cultural disadvantage is a sufficient condition for relevant group-differentiated legal rights. 7

Let us suppose here that animal slaughtering is a part of Judaism. It is a theological question whether this is so.

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JUHA RÄIKKÄ 2. The Modified Disadvantage Criterion. Cultural disadvantage is a necessary condition for relevant group-differentiated legal rights. 3. The Strict Disadvantage Criterion. Cultural disadvantage is a necessary and sufficient condition for relevant group-differentiated legal rights. 4. The Modest Disadvantage Criterion. Cultural disadvantage is a relevant factor when justifying relevant group-differentiated legal rights.

The modified disadvantage criterion and the strict disadvantage criterion do not allow other justifications for special minority rights in place of the argument of disadvantage. So they do not only say that the argument of cultural disadvantage is correct; they also say that alternative forms are erroneous. The pure disadvantage criterion is less demanding than the modified disadvantage criterion and the strict disadvantage criterion in the sense that it does not reject alternative arguments for group-differentiated legal rights. The common characteristic of the pure disadvantage criterion and the strict disadvantage criterion is that they both entail that there are no circumstances that would cancel a group’s special rights if they are in a disadvantaged position: if a cultural minority is disadvantaged by being minority, that’s all that’s needed. The modest disadvantage criterion differs clearly from the three other interpretations of the argument of cultural disadvantage. The modest criterion allows that there may be many acceptable justifications for special minority rights, although it does not say that there should be many justifications. The modest disadvantage criterion allows that disadvantaged position alone to be sufficient justification for special legal rights, but it does not say that this should be the case. The point of the modest criterion is that, although there might be many justifications, cultural disadvantage, perhaps when supplemented with other relevant factors, justifies group-differentiated rights for cultural minorities. (Note that the claim that there may be many different justifications for group-differentiated legal rights does not necessarily entail that such groups that are not in a disadvantaged position are also entitled to group-differentiated legal rights. It is possible that only disadvantaged groups are justified in having special rights even if these rights are not justified by referring to cultural disadvantage). Since the argument of cultural disadvantage can be used to defend either minorities that are in a strongly disadvantaged position or minorities that are in a weakly disadvantaged position, and since the argument can be interpreted in four different ways, it follows that there are eight different readings of the argument of cultural disadvantage. It is unnecessary to give an example of each type. In both civic discussion and philosophical literature the most commonly used type is the one that says that disadvantage is a relevant feature (the modest disadvantage criterion) and that even minorities in a weakly disadvantaged position should have relevant group-differentiated legal rights. An example of this type is the claim that indigenous people should have territorial rights, since they are in a (weakly) disadvantaged position, while immigrant groups, which are also in a (weakly) 216

THE ARGUMENT OF CULTURAL DISADVANTAGE disadvantaged position, are not justified in obtaining similar rights, since they have changed their culture voluntarily.8 3. ON THE VALUE OF CULTURAL PLURALISM The argument of cultural disadvantage is based on the rights of the members of cultural minorities who are practically speaking forced to leave or change their culture or simply suffer if not supported with special legal rights. However, not all arguments for group-differentiated legal rights are based on the rights of these persons. Suppose there is a cultural minority that is not even in a very weakly disadvantaged position, i.e. it would be perfectly easy and painless for them to assimilate to the mainstream. Furthermore, let us imagine that giving groupdifferentiated legal rights to the group to avoid assimilation is very costly, i.e. the side-effects of minority protection involve serious moral costs and costs for the majority. Finally, let us assume that the main reason why most members stay in their group is that, because of special legal rights, they have many benefits from group membership. In this case, the argument of cultural disadvantage does not provide grounds for special rights, for the condition of disadvantage does not hold. However, there are arguments for group-differentiated rights that are not based on the rights of disadvantaged members of minorities which can be employed in the situation described. First, an argument can be based on the interests of those who have a patriotic reason to value a cultural group. According to this argument, it is crucial to take into account the concerns of those who value their cultural group intrinsically, and therefore special legal rights are justified even if there is no cultural disadvantage. Second, an argument can be based on the presumed intrinsic value of cultural groups. This argument maintains that because of the intrinsic value of (certain) cultural groups, they should be protected by special legal rights, whether or not they are disadvantaged. Finally, an argument can be based on the interests of the majority and the larger society. According to this argument, cultural diversity contributes to the richness of the lives of the majority, in aesthetic and many other senses, and so cultural groups are justified in having special protection, even if they are not disadvantaged. These arguments can be designated as the following: (1)

The Patriotic Argument.

(2)

The Intrinsic Value Argument.

(3)

The Cultural Diversity Argument.

Let us briefly estimate each of these arguments. (1) The Patriotic Argument. Consider the case of a small cultural minority most of whose members do not see much point in belonging to their group. Good schools, 8

Cf. Kymlicka, Multicultural Citizenship, supra note 1.

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JUHA RÄIKKÄ good jobs, and new opportunities are in the big cities, where people watch CNN and drink Campari in the evenings. Gradually, most members decide to leave, and the result is that the members who decide to stay watch as their culture slowly disappears. According to the patriotic argument, however, the larger society should prevent the ongoing process by giving appropriate (i.e. effective) groupdifferentiated legal rights to the members of the group. This is because some members are strongly interested in preserving their culture, and if their culture is not preserved, they are seriously harmed. As Charles Taylor argues, when there are persons in a group whose crucial interest is the ‘goal of survivance’, then they are harmed if the group is permitted to vanish.9 According to Taylor, it is important to ‘meet the concerns of those who see their communities as intrinsically valuable’.10 Taylor’s example is the people of French-Canadian ancestry. ‘In certain circumstances, a case could be made for rapid assimilation, particularly for future members of the community, if the only goal were to ensure that all individuals have the cultural resources necessary to undertake their own pursuit of the good. The people of French-Canadian ancestry, now assimilated in New England, are doing just as well as any other segment of the U.S. population in leading their lives in the Englishlanguage medium their share with their present compatriots. But the loss 11 from the point of view of survivance is clear.’

The patriotic argument has some plausibility in its simplicity. Obviously, some people do value their culture intrinsically, and cultural decay harms their interests. However, there are important queries regarding the argument. It is obvious that members of minorities cannot have an all-things-considered moral obligation not to disassociate from their group (although they may well have a prima facie obligation not to disassociate). Instead, individuals should be free to leave communities or groups whose terms they no longer accept.12 So one might ask why the majority should have an obligation to grant group-differentiated rights to a minority in order to preserve it, if the members of such a minority do not have obligations to preserve it, if they are largely not interested in preserving it, and if the persons who are planning to leave the group are not harmed if they are not given group-differentiated rights. Another problem is that it is not clear that a few people’s interest in the ‘goal or survivance’ is more important to take into account in legislation and policy decisions than the majority’s interests in avoiding moral costs and costs for themselves. Much hinges on what values agents embrace. Surely a further argument is needed to show that interest in the ‘goal of survivance’ is prior to interests concerning equal distribution of citizenship rights.

9

C. Taylor, ‘Can Liberalism Be Communitarian?’, 8 Critical Review (1994) p. 260. Ibid., p. 257. 11 Ibid., p. 260. 12 Cf. e.g., C. Kukathas, ‘Are There Any Cultural Rights?’ in W. Kymlicka (ed.), The Rights of Minority Cultures (Oxford University Press, Oxford 1995) p. 238. 10

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THE ARGUMENT OF CULTURAL DISADVANTAGE (2) The Intrinsic Value Argument. Another argument for group-differentiated rights that is not based on the rights of the members of a disadvantaged minority claims that cultural groups have intrinsic value. Not only do some people think that communities and cultural entities have intrinsic value, as pointed out by Taylor; they have intrinsic value in fact. To let certain groups vanish is bad not because it hurts those who value them, but because they are in fact valuable. This argument is presented for instance by Steven C. Rockefeller in his essay concerning ‘the intrinsic value of the different cultural forms’.13 Rockefeller writes: ‘It may be argued that human cultures are themselves like life forms. They are the products of natural evolutionary processes of organic growth. Each, in its own distinct fashion, reveals the way the creative energy of the universe, working through human nature in interaction with a distinct environment, has come to a unique focus. Each has its own place in the larger scheme of things, and each possesses intrinsic value quite apart from whatever value its traditions may have for other cultures.’14

The intrinsic value argument is interesting, and as the notions of intrinsic value and cultural form are anything but clear, it is not easy to say without qualification whether the argument is tenable. However, if one wishes to support groupdifferentiated rights with the intrinsic value argument, again there are important remarks to be made. First, if we should preserve cultural groups like we preserve nature and the environment, then we should allow natural changes of cultural groups – just like we allow natural changes when preserving ecosystems. So if a culture vanishes naturally, not as a result of violence or hidden pressure, is there anything wrong? Of course, historically speaking, cultures have not often vanished naturally, but surely one should allow a place in one’s theory for such natural vanishing. After all, cultural minorities are by their nature static entities only in myths and romance movies. In real life, cultures’ compositions, practices and characteristics change all the time – which is often a fortunate thing. Second, even if it were bad in all cases if cultural groups vanished (because they are intrinsically valuable), it would not follow that therefore they should be preserved by groupdifferentiated rights. A further argument is needed to show that the presumed intrinsic value of cultures is more important than the value of justice and well-being

13

S. C. Rockefeller, ‘Comment to Taylor’, in C. Taylor et al., Multiculturalism and ‘The Politics of Recognition’ (Princeton University Press, Princeton, 1992) p.87. 14 Ibid., p. 94. Cf. M. Walzer, Thick and Thin – Moral Argument at Home and Abroad (Notre Dame University Press, Notre Dame 1994) p. 72. Albert Musschenga discusses Rockefeller’s argument in detail in his ‘Intrinsic Value as a Reason for the Preservation of Cultures’, a lecture presented in the meeting on Nationalism, Multiculturalism, and Liberal Democracy, Amsterdam, November 1997.

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JUHA RÄIKKÄ of individual persons, granted that group-differentiated rights have moral costs.15 In its anti-individualism and romanticism, the claim that all cultures or all cultural practices are in all cases more valuable than justice sounds plainly false.16 (3) The Cultural Diversity Argument. According to the argument for special legal minority rights based on the interests of the majority, it is bad if minority cultures vanish because that is bad for people who interact and cooperate with them. The majority values cultural diversity, and even if they are sometimes unaware of the positive impacts of so-called multiculturalism, these impacts are real. This is why cultural groups should be protected by group-differentiated rights. Richard Falk defends special rights of indigenous people with the cultural diversity argument in the following way. ‘In a fundamental sense, indigenous peoples preserve and embody alternate life-styles that may provide models, inspiration, guidance in the essential work of world order redesign, an undertaking now primarily associated with overcoming self-destructive tendencies in the behaviour of modern societies . . . The Aboriginal viewpoint corresponds closely with the ecological perspective, and is at odds with developmental and growth perspectives of modern industrializing societies. The importance for all of us to maintain these societal models of ecological success, tested over a long stretch of time, provides a pragmatic rationale for safeguarding Aboriginal peoples. Beyond this, societal diversity enhances the quality of life, by enriching our experience, expanding cultural resources.’17

The cultural diversity argument includes important truths, in particular, the claim that sometimes diversity improves quality of life. However, the critical question regarding the argument is easy to guess: Does the fact that cultural variety may have desirable societal consequences, from the point of view of the majority, justify group-differentiated legal rights, granted that these rights have undesirable 15 Here I presume that it makes sense to say that some intrinsic values are more (or less) important than other (intrinsic) values. Whether this presumption is justified depends on one’s theory of the nature of intrinsic values. 16 There has been much discussion about what is the relation between minority protection and human rights, see e.g., C. C. Gould, ‘Group Rights and Social Ontology’, 28 The Philosophical Forum (1997), p. 81; Kukathas, supra note 12, p. 234; Leslie Green, ‘Internal Minorities and their Rights’, in W. Kymlicka (ed.), The Rights of Minority Cultures (Oxford University Press, Oxford 1995) pp. 261−267. Presumably, any moral evaluation must, ultimately, in order to be a moral evaluation, consider how actual individuals (and not only groups) have been or might be affected. 17 R. Falk, ‘The Rights of Peoples (In Particular Indigenous Peoples)’, in J. Crawford (ed.), The Rights of Peoples (Clarendon Press, Oxford, 1988) p. 23. Cf. W. Kymlicka, Multicultural Citizenship, 121−123. See also W. Cragg, ‘Two Concepts of Community or Moral Theory and Canadian Culture’, 25 Dialogue (1986) pp. 31−52, esp. p. 46, where Cragg argues against the liberal theory of justice on the basis that, as he sees it, it is compatible with cultural homogeneity (as it should not be).

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THE ARGUMENT OF CULTURAL DISADVANTAGE consequences, again from the point of view of the majority? Perhaps, perhaps not: The answer depends on details (i.e. on the amount and nature of costs, the quality of desirable effects, etc.). Another question is whether preserving cultural diversity in fact requires special rights. Surely it is not impossible that cultural diversity, in a relevant sense, would remain even without special rights. Furthermore, when cultural minorities are assimilated with the majority because they lack special legal rights, this situation may improve cultural diversity in a more desirable way than the ‘politics of recognition’. Of course, the cosmopolitan outlook of metropolises around the world is not the result of membership-sensitive public policy, but the consequence of assimilation. The argument of cultural disadvantage differs from the patriotic argument, the intrinsic value argument, and the cultural diversity argument, since the argument of cultural disadvantage does not presuppose that cultural groups are intrinsically valued, that groups have intrinsic value, or that cultural diversity contributes positively to the larger society; still less does it claim that these things could morally justify group-differentiated legal rights. Whether the patriotic argument, the intrinsic value argument, or the cultural diversity argument is correct, or whether they all are correct, is a question beyond the scope of this essay. However, if one or more of them is indeed correct, this does not show that the argument of cultural disadvantage is incorrect. For both the modest disadvantage criterion and the pure disadvantage criterion allow that there could be many justifications for group-differentiated rights.18 Indeed, the argument of cultural disadvantage, in particular the modest disadvantage criterion, can fruitfully be used with the alternative arguments. For instance, one might argue that a cultural group is justified in having relevant groupdifferentiated legal rights (i) if it is in a disadvantaged position and (ii) if giving group-differentiated rights to it has clear positive societal effects (the cultural diversity argument). Or one might say that a group is justified in having relevant group-differentiated legal rights (i) if it is in a disadvantaged position or (ii) if it has intrinsic value (the intrinsic value argument). In the final analysis, if we justify special minority rights with some form of the argument of cultural disadvantage, then perhaps the patriotic argument, the intrinsic value argument, and the cultural diversity argument tell something important about the positive side-effects of such morally justified legal rights. 4. NON-EGALITARIAN JUSTICE AND MINORITY PROTECTION There are arguments for group-differentiated minority rights that are not based on the disadvantage criterion but that are still based on the rights of members of minorities, unlike the arguments discussed in the previous section. This distinct category of arguments includes the contractian argument, the compensatory argument, and the original acquisition argument, as they might be called.

18

In Multicultural Citizenship, supra note 1, p. 120, Kymlicka is quite explicit that the argument of cultural disadvantage can work together with other arguments.

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JUHA RÄIKKÄ According to the contractian argument, some cultural groups have made historical agreements with the larger society that entitle them to group-differentiated legal rights, and therefore they are morally justified in having them. In Multicultural Citizenship Kymlicka defends this view and emphasizes the ‘importance of honouring historical agreements’, since ‘the way in which a national minority was incorporated often gives rise to certain group-differentiated rights’.19 The compensatory argument says that throughout history members of many cultural minorities have been discriminated against – for instance because of their nationality or ethnic background – and relevant group-differentiated legal rights will compensate for the earlier wrongdoing. This is why these rights are morally justified. Among others, Vernon van Dyke puts forth this argument: ‘where a group has been denied equality by discriminatory policies and practices, compensatory justice should be afforded’.20 According to the original acquisition argument, the rightful owners of the land are in many cases cultural minority groups, and therefore they are justified in having relevant group-differentiated rights, in particular territorial rights. As David Lyons puts it, the original acquisition argument concerns morally legitimate transfers by claiming that the transfers by which many minority cultures ‘lost lands were illegitimate’.21 Since the contractian argument, the compensatory argument, and the original acquisition argument are familiar from many contexts, and since the problems of the arguments are well known, it is needless to consider them in any detail. Whether some of them are acceptable (in certain historical cases) is not the issue here. A relevant question is, what is the essential difference between the argument of cultural disadvantage and the contractian argument, the compensatory argument, and the original acquisition argument? All of these arguments concern justice, and all of them ground the justification of special legal rights on the rights of the members of minorities, not on the interests of a few patriots, the interests of the majority, or the presumed intrinsic value of cultural groups. The difference lies in the fact that the argument of cultural disadvantage, unlike the contractian argument, the compensatory argument, and the original acquisition argument, is based on rights that minorities have but members of the majority do not. Of course, the point of these arguments is that members of minorities have special moral rights (because of agreement, past discrimination, or original acquisition), which is why they earn special legal rights as well. In this sense, these arguments represent non-egalitarian justice. So one may try to justify group-differentiated legal rights by saying that these rights are justified because we all have the same moral rights (the argument of cultural disadvantage) or by saying that they are justified because we do not have the

19

Kymlicka, Multicultural Citizenship, supra note 1, pp. 116−117. V. van Dyke, ‘Justice as Fairness: For Groups?’, 69 The American Political Science Review (1975) p. 612. 21 D. Lyons, ‘The New Indian Claims and Original Rights to Land’, in J. Paul (ed.), Reading Nozick (Basil Blackwell, Oxford 1981) p. 358. Lyons does not accept the original acquisition argument. 20

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THE ARGUMENT OF CULTURAL DISADVANTAGE same moral rights (the contractian argument, the compensatory argument, and the original acquisition argument). Historical facts aside, suppose that Maoris are not in a disadvantaged position: suppose it will be easy for them to assimilate into the mainstream. (Let us again assume that it is possible that assimilation to the mainstream can be perfectly easy and painless for minorities). Suppose further that without special legal rights their age-old culture would vanish. In this case, should Maoris be protected by special legal rights? Surely common intuition is that they should, and because the disadvantage condition does not hold, this intuition cannot be justified by referring to the argument of cultural disadvantage. However, one may try to justify the intuition by the contractian argument, the compensatory argument, or the original acquisition argument. If Maoris have relevant special moral rights, these arguments could possibly do the job. A crucial question, however, is would it be unjust, in the case described, if Maoris were left without group-differentiated-rights, or would it be merely morally wrong? If our common intuition has nothing to do with justice, which is very much possible, then the contractian argument, the compensatory argument, and the original acquisition argument are no more useful than the argument of cultural disadvantage here, and they are not different in this respect. If the majority culture’s ‘assimilationist drive’ is not intended, but rather the undesirable consequence of historical circumstances far beyond their control, and if it is undesirable because not to correct it would be morally wrong rather than unjust, then perhaps we should talk about morality and collective responsibility rather than justice.22 5. PROS AND CONS OF THE ARGUMENT OF CULTURAL DISADVANTAGE The argument of cultural disadvantage can justify only such group-differentiated legal rights that incur moral costs (unequal distribution of rights and domino-effects) that are morally acceptable because of cultural equality. When a particular groupdifferentiated legal right is defended on the basis of the argument of cultural disadvantage, there is always an empirical question – what are the social consequences of that particular right – and a normative question – are these consequences morally acceptable because of cultural equality, or should we rather accept cultural disadvantages because the costs of the special right would be unreasonable? Any argument for special legal rights raises similar questions. For any justified moral argument for special legal minority rights should give moral reasons to accept the moral costs special legal rights produce.23

22

Cf. Cooper, supra note 3, pp. 438, 440. I apologize for the Maori-example: to repeat, the case is more or less counterfactual. At the same time, however, it seems to help us to clear our minds. 23 Cf. Kukathas, supra note 3, p. 423. Levey, supra note 3, pp. 222, 234. Note that one may reject the argument of cultural disadvantage simply by denying egalitarian philosophies in general, i.e. if it is true that the argument of cultural disadvantage is necessarily egalitarian.

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JUHA RÄIKKÄ However, when evaluating the argument of cultural disadvantage, there are questions to be asked that are not relevant if one evaluates any other argument from group- differentiated rights. The credibility of the argument of cultural disadvantage depends on various, distinct but interrelated, factors. In particular, the credibility depends on (F1) what type of argument of cultural disadvantage one uses (pure, strict, modified or modest disadvantage criterion), (F2) how badly a group whose rights are defended is disadvantaged (is it in a strongly or weakly disadvantaged position, how easy would assimilation be for the members) (F3) what the content of the argument is (what legal right is defended, what moral right grounds the claim, how is the existence of such a moral right defended) (F4) how the basic concepts of the argument of cultural disadvantage are defined (what counts as ‘systematic disadvantage’, which groups are ‘cultural’).

Consider each factor (F1−F4) briefly. (F1) It is obvious that the pure disadvantage criterion and modest disadvantage criterion are better formulations of the argument of cultural disadvantage than the modified disadvantage criterion and strict disadvantage criterion, since unlike the latter formulations, the former do not claim that disadvantage is a necessary condition for special rights. They allow that there are many acceptable arguments for group-differentiated legal rights – arguments that do not presume that disadvantage is a necessary condition for special rights – which sounds plausible. Intuitively it is at least possible that a cultural group is entitled to special rights even if it is not in a disadvantaged position. (Recall the Maori case above.) To explain and justify this intuition one needs considerations that are not based on the argument of cultural disadvantage. Sometimes the argument of cultural disadvantage is criticized simply on the grounds that it is unable to justify certain beliefs people commonly have (i.e. according to the criticism) regarding minority protection. Taylor, for instance, argues that the argument ‘fails to capture the heart of a politics of cultural survival’ since it does not see anything wrong in assimilating cultural groups that are happy to join the main crew.24 Whatever the merits of this objection, however, it does not show that the argument of cultural disadvantage is mistaken. For both the modest disadvantage criterion and the pure disadvantage criterion can be used together with the arguments Taylor prefers, i.e. the arguments that ‘meet the concerns of those 24

Taylor, supra note 9, p. 260. We may say that because of cultural disadvantage of the group we need to provide it extra-help to integrate in the broader society. In Israel for instance the children of immigrants get extra hours of Hebrew teaching aimed at reducing the pain of integration.

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THE ARGUMENT OF CULTURAL DISADVANTAGE who see their communities as intrinsically valuable’,25 and other arguments that aim to justify the belief that it is possible that a group should have special rights even if it is not in a disadvantaged position. (F2) The argument of cultural disadvantage works better if the group whose special rights are defended is in a strongly disadvantaged position than if it is in a weakly disadvantaged position. In general, the weaker the disadvantaged position, i.e. the easier it is for the members of minority to assimilate to the main culture, the weaker the argument of cultural disadvantage. The explanation for this is obvious. If a group is unable to use certain moral rights or common citizenship rights without appropriate group-differentiated legal rights, there is a strong moral reason to grant such legal rights. But if it is relatively easy (although not completely painless) for a minority to use certain moral rights or common citizenship rights even without group-differentiated legal rights, the moral case for allowing such rights is weak (although nevertheless real). John R. Danley has argued that the argument of cultural disadvantage does not work at all if the group whose rights are defended is not in a strongly disadvantaged position. Danley writes that the core intuitions that the argument of cultural disadvantage seeks to tap ‘are associated with circumstances such as physical handicaps or social conditions such as being born into a poor family’.26 Just as handicapped people are justified in having their own parking places etc., so members of minority cultures are justified in having relevant group-differentiated rights, or so the argument of cultural disadvantage goes. However, in Danley’s view, the ‘very comparison of cultural membership with the possession of a handicap is disingenuous’, for most ‘individuals with handicaps would readily give them up if they could, but they cannot’, while ‘members of minority cultures are usually not at all willing to give up membership in their culture, but they can’. Danley asks’ ‘[w]hat if one could choose not to be handicapped or to be born into poverty’, and his answer is that then, immediately, ‘our intuitions shift’.27 For special rights are acceptable only if no voluntary component is included. While Danley is certainly right in pointing out the difference between the moral relevance of being in a strongly disadvantaged position and the moral relevance of being in a weakly disadvantaged position, his criticism rests on an exaggeration. Surely there is also a moral difference between being able to choose one’s culture without difficult and painful experiences (a minority that is not in a disadvantaged position) and being able to choose one’s culture with such experiences (a minority that is in a weakly disadvantaged position). Some group-differentiated rights may be well justified solely on the basis of preventing difficult and painful experiences. 25

Ibid., p. 257. Danley, supra note 3, p. 176. Cf. Cooper, supra note 3, p. 437. 27 Ibid., p. 177. Cf. argument for homosexual minorities. It is (typically) not a matter of free choice whether one is disabled, and likewise one probably cannot choose one’s sexual orientation either. For a discussion, see J. F. Corvino, ‘How Not to Argue for Gay Rights’ in J. Räikkä (Ed.), Do We Need Minority Rights? (Martinus Nijhoff Publishers, The Hague, 1997) pp. 215−235. 26

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JUHA RÄIKKÄ Even if one can choose his or her language, choosing one’s language is very different from choosing, say, one’s clothes.28 (F3) It is obvious that it is the content of the argument of cultural disadvantage that makes it tenable or, alternatively, ambiguous. Suppose that someone presents the following argument: Because this is a free world, there is a moral right to enjoy the concerts of one’s favourite artists. But if Luciano Pavarotti fans do not have reduced prices for plane tickets, it is painful and difficult for them to exercise their moral right. Therefore, the subculture of Pavarotti fans is entitled to reduced prices for plane tickets. In the name of cultural equality, the majority should help them pay for their tickets.

Formally speaking, this is an instance of the argument of cultural disadvantage. But clearly the argument is not justified. (It is unnecessary to specify all the misunderstandings contained in it.) A common objection against the argument of cultural disadvantage is the claim that the argument would vindicate too many group-differentiated rights for too many minorities. Geoffrey Brahm Levey, among others, argues that the ‘attempt to develop a general theory of minority rights via the value of equality and the notion of cultural disadvantage is a mistake’, since the argument ‘seems to mandate too much given the number of minorities eligible for recognition’.29 Levey’s target is Kymlicka’s version of the argument of cultural disadvantage, and to be sure, it is possible that, unintentionally, it does mandate ‘too much’.30 However, the fact that this form of the argument of cultural disadvantage can be used to defend of all kinds of group-differentiated rights for all kinds of minorities does not entail that therefore all versions of the argument are wrong. Of course, it is possible that some versions of the argument are obviously wrong, as exemplified by the above argument for special rights for Pavarotti fans, while some other versions are as obviously correct. If a version of the argument of cultural disadvantage is found unjustified, this is insufficient evidence for the conclusion that it is a mistake ‘to develop a general theory of minority rights via the value of equality and the notion of cultural disadvantage’". (In short, to show that Kymlicka’s theory fails is not to show that all theories that are based on the value of cultural equality must fail.) (F4) A crucial and probably the most difficult question regarding the argument of cultural disadvantage is what exactly is meant by ‘cultural disadvantage’, or

28 Danley, supra note 3, p. 177, says that individuals are responsible for their culture, i.e. he thinks that in a relevant sense individuals are able to choose their culture ņ like clothes. 29 Levey, supra note 3, p. 224. Cf. Danley, supra note 3, p. 169. 30 Kymlicka’s explicit intention is to limit the number of groups eligible for groupdifferentiated rights. See e.g., Multicultural Citizenship, supra note 1, pp. 143–149. Note that the pure disadvantage criterion allows more group-differentiated rights than the modest criterion, since it claims that cultural disadvantage is a sufficient condition for such rights.

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THE ARGUMENT OF CULTURAL DISADVANTAGE ‘systematic cultural disadvantage’.31 There are two ways the argument of cultural disadvantage can collapse if the notion of cultural disadvantage is defined carelessly. Either the argument does not imply anything whatsoever, since it is impossible to interpret it concretely. Or the argument implies conclusions that are plainly false, say, the conclusion that a ‘subculture’ of Pavarotti fans have a group-differentiated legal right to discounted plane tickets. If the notion of cultural disadvantage is understood widely, the implication is that almost every citizen belongs to a group that is disadvantaged. Iris Marion Young writes that perhaps ‘in some utopian future there will be a society without group oppression and disadvantage’, but in (United States) today ‘at least the following groups’ are disadvantaged in some way or another: ‘women, blacks, Native Americans, Chinanos, Puerto Ricans and other Spanish-speaking Americans, Asian Americans, gay men, lesbians, working-class people, poor people, old people, and mentally and physically disabled people’.32 Young does not claim that these disadvantaged groups are all culturally disadvantaged, but it is clear that if we grant that being in a (culturally or socioeconomically) disadvantaged position as such justifies special legal rights (like the group representation rights that Young defends), then Levey’s and others’ concern that too many rights will be recognized resurfaces.33 If the argument of cultural disadvantage mandates too much, perhaps one should either check whether one’s notion of cultural disadvantage can be defined in a way that produces more plausible results or extend one’s argument with criteria that prevent counter-intuitive consequences. A deep philosophical question here is whether one is entitled to reject (or strongly revise) a moral argument simply because he or she thinks that its implications are counter-intuitive. Are we justified in rejecting a version of the argument of cultural disadvantage, if it implies that immigrants should have certain group-differentiated legal rights and if we think that they should not have those rights?34 If we are so justified, what, then, is the purpose of moral arguments 31

There is a large body of literature concerning the notion of systematic disadvantage and systematic discrimination. See e.g., N. Glazer, ‘Individual Rights against Group Rights’ in A. Tay and E. Kamenka (eds.), Human Rights (Edward Arnold, London 1978) pp. 87−103, esp. p. 93; J. Bohman, ‘Public Reason and Cultural Pluralism’, 23 Political Theory (1995) pp. 253−279, esp. p. 272; J. Räikkä, ‘On the Ethics of Minority Protection’ in M. Suksi (ed.), Autonomy: Applications and Implications (Kluwer Academic Publishers, The Haque 1998) pp. 33−42. 32 I. M. Young, ‘Polity and Group-Difference: A Critique of the Ideal of Universal Citizenship’, 99 Ethics (1989) pp. 250–274, esp. p. 261. Cf. I. M. Young, ‘Communication and the Other: Beyond Deliberative Democracy’, in S. Benhabib (ed.), Democracy and Difference (Princeton University Press, Princeton, 1996) pp. 120−135, esp. p. 126. 33 Cf. Kymlicka, Multicultural Citizenship, supra note 1, p. 141. 34 Both Levey and Danley think that we are justified in rejecting a theory if its implications are wrong. See Levey, supra note 3, pp. 222−224; Danley, supra note 3, p. 169. For a discussion, see J. Räikkä, ‘Is the Membership-Blind Model of Justice False by Definition’ in J. Räikkä (Ed.), Do We Need Minority Rights? (Martinus Nijhoff Publishers, The Hague, 1997) pp. 3−19.

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JUHA RÄIKKÄ anyway? Another question is exactly when a version of the argument of cultural disadvantage does mandate too much. Some people have a belief that immigrants are not justified in having special legal rights even if they are as disadvantaged as indigenous people. But there are different beliefs too. There are good grounds to argue that many different cultural groups are entitled to group-differentiated legal rights, since the content of these rights varies case by case, and therefore there is no danger that the result is catastrophic inflation of special rights.35 Perhaps only indigenous people are entitled to territorial rights, but immigrants may be entitled, say, to linguistic rights. 6. CONCLUDING REMARKS I have argued that, in principle, group-differentiated legal rights of minority cultures, i.e. the members of such groups, can be defended by referring to the moral value of cultural equality. Whatever the objections and alternatives to the argument of cultural disadvantage show, they do not show that the basic idea of the argument is mistaken. Cultural disadvantage is a morally relevant factor that should be taken into account when formulating laws and public policies of multicultural liberal democracies. Perhaps this is unsurprising; but if it is, then it is surprising that many theorists have thought in other way. The argument of cultural disadvantage can be defended by defining its basic concepts carefully, by supporting its content with plausible reasons, by trying to formulate it so that it rests on a plausible form of the argument (i.e., on the modest disadvantage criterion), and by not using it in defence of minority groups that are merely in a very weakly disadvantaged position. All this may sound relatively trivial, but in practice it is difficult to state the argument of cultural disadvantage so that all the relevant factors are taken into account, and here are the limits of the argument, too. For instance Kymlicka’s main argument for the group-differentiated legal rights of cultural minorities is a highly sophisticated version of the argument of cultural disadvantage, and even that version is found dubious by many commentators. While some critics’ objections may have been mistaken, their criticisms show that concrete versions of the argument of cultural disadvantage are bound to be contestable. It is often difficult to judge how easy it would be for the members of a particular minority to assimilate to the majority culture. Those who passionately defend groupdifferentiated rights tend to think that assimilation is often very painful and difficult, while their critics do not see many problems in assimilation. It is obvious that these questions should be solved on a case-by-case basis, taking into account the historical circumstances: general philosophical theories of minority protection are quite useless here. However, one should keep in mind that it is one thing to evaluate how easy assimilation would be and another thing to evaluate how acceptable it would be. Some people think that in certain cases assimilation should be accepted whether or not it is painful and difficult for those who assimilate. In Estonia, for instance, 35

As argued by Green, supra note 16, p. 261.

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THE ARGUMENT OF CULTURAL DISADVANTAGE many people think (wrongly perhaps) that the Russian minority, the descendants of those who once occupied the country, should not have linguistic rights even if they know that learning Estonian is anything but easy for the Russians. In this and similar cases the question is really not about whether cultural disadvantage is a fact but whether cultural disadvantage is a morally relevant fact such that it suffices, when other relevant factors are taken into account, to justify special rights. Here a philosophical theory of minority protection is needed.

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THE RIGHT OF A PEOPLE TO EXERCISE THEIR CULTURE – A SCANDINAVIAN MODEL Isi Foighel1 The international trend of the transformation of the colonies to independent states which matured in the years after 1950 – was first inspired by the desire of the independent people to take over the responsibility for their own destiny. This trend, which resulted in many new states, had its price. Very seldom did the transformation take place without bloodshed and more often than not the development led to a severing of relations with the former colonial power. In Scandinavia, the international development had its effect on groups of citizens who defined themselves as a people and whose language, culture and other characteristics were distinct from those of the majority of the population. In contradistinction to what happened in the world at large, the indigenous people of Scandinavia did not aim at independence, but they wanted a type of autonomy which gave them the right and the possibility to manage and decide their own affairs. They wanted respect for their cultural and other rights according to international law. The question of the rights of indigenous people had also played a decisive role in Denmark.2 The Faeroe people had obtained local autonomy with a wide right to self–government already in 1948, and Greenland received local autonomy by the Greenland Home Rule Act of 29 November 1978. This act was based on a report made by a Commission on Home Rule appointed by the Government. The Commission comprised five members elected by the Greenland Provincial Council, the two Greenland members of Parliament, seven members elected by Parliament and a Chairman appointed by the Minister for Greenland. The background for the commission’s report was the following: With a total of 2,175,600 square kilometres, Greenland constitutes the largest island of the world. By far the greater part of the Island is permanently covered by the icecap, the ice-free areas covering only 341,700 square kilometres. This area is inhabited by some 45,000 persons of which nearly 40,000 were born in Greenland, ethnically being Inuit. By far the greater part of the working population (some 13,500 persons) make their livelihood from hunting, fishing and sheep-breeding, 1

Parts of this article have been published in Meddelelser om Groenland, Man & Society, no.1,1980, and in Rettsteori og rettslov, Universitets-forlaget, Oslo 2002. 2 In Norway, the Sami people wanted recognition of their minority rights as an indigenous people. The Norwegian Government appointed Carsten Smith as the first chairman of the Sami Rights Committee (1980-1985). It was a good appointment. Carsten Smith accepted as his basic standpoint that the right of a people to exercise their culture is one of the fundamental human rights. The Committee’s reports from 1984-1987 earned the full support of the Government and the Storting. The work of the Committee resulted in a separate Sami Act and changes in the Norwegian Constitution.

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ISI FOIGHEL whereas the rest today is occupied in the field of administration, transport, building, construction etc. Since the famous voyage of the Danish missionary Hans Egede to Greenland in 1721, Greenland has been considered a Danish colony. The first major general regulation concerning Greenland, ‘Instructions regarding Trade and Whalehunters in Greenland’, was issued on 19 April 1782. In this act the Danish King laid down the general policy regarding the Northern colony. The instructions provide that the administration should apply the guiding principle that any work undertaken in Greenland should be made in the best interest of the Greenlanders. Trading interests should also be promoted as much as possible, but should have second priority. The administration of Greenland has had its seat in Copenhagen, but in the second half of the nineteenth century local organs of government were established: Elected Advisory Councils – subsequently replaced by Municipal Councils – and two Provincial Councils for Northern and Southern Greenland respectively, which were merged into one Council in 1960. The status of colony could hardly survive the second world war, during which, above all, the association with the USA meant stronger contact with the surrounding world. This, in conjunction with the import of many novel and exciting goods and an extended economy, created a need for – as well as an expectation of – a new epoch. When the new Danish Constitution was adopted in 1953, Greenland became an integral part of the Danish Realm with equal rights. In this connection it is interesting to note, that Greenland becoming integrated in the Danish Realm - in spite of the Declaration regarding Non-Self-Governing Territories in Chapter XI in the UN Charter - was approved by the General Assembly of the United Nations in 1954 upon representatives of the Greenland population having appeared and expressed their agreement with the amended constitution. At the same time a tremendous programme of development was initiated in all areas in order to fulfil the goals of the new order set by Denmark as well as by Greenland: to create the greatest possible equality between Danes and Greenlanders. The fact that this task involved enormous problems may be seen from the number of commissions and committees which, since then, have been established in order to adjust the goals and the methods. The work of the Commission on Home Rule was influenced by three major elements: 1) Due to its political composition, the Commission had to find a political solution, which – at the time was critical in the evolution of the relations between Denmark and Greenland – could prevent any breaking off of these relations and which, on the contrary, could contribute to the creation of a new basis for strengthening the ties which hold the two parts of the Realm together.

The fact that it was justified to characterize the relation between Denmark and Greenland was critical in the early seventies stems from a number of circumstances.

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THE RIGHT OF A PEOPLE TO EXERCISE THEIR CULTURE – A SCANDINAVIAN MODEL First of all one may point to the fact that the evolution which had commenced some 25 years earlier involving a mutual wish of equality in terms of social status, education, housing and other matters between Greenland and Denmark had changed the Greenland society in major ways and in comparatively few years.The efficiency and the speed with which the changes took place had created in many people in Greenland some uncertainty and insecurity in relation to the many novelties, which created dissatisfaction and strains in the relation between Greenland and Denmark. However, even though it is difficult to argue that efficiency goes too far and although, by definition, one cannot proceed too speedily in creating decent dwellings, fighting tuberculosis, modernizing a fleet of fishing vessels, etc., the enormous Danish investments and the great number of experts and workmen dispatched to Greenland, nonetheless meant that the influence of the Government upon everyday life in Greenland in all fields was felt more strongly. Consequently, Greenlandic influence was seen as correspondingly constantly decreasing. In other words, Greenland felt that equality was hardly a reality. ‘One was a tenant in one’s own country’, as the saying went. Secondly the referendum in 1972 regarding the European Community played a role. The result of the referendum in Greenland was that only 28.4 per cent wished to join the EC. The votes cast in Greenland were - in fact fully in accordance with the constitutional status of Greenland – combined with the votes in the rest of Denmark, so that Greenland became included in the Danish EC-membership. For the first time the Danish Government engaged in a Greenland policy, which many conceived as contrary to the wishes of Greenland. This created a feeling of powerlessness. Finally, there is no doubt that the fact that concessions for the exploitation of oil outside the coast of Greenland were given in the spring of 1975, created some disturbance although the decision had been approved by a majority of Greenlandic politicians. The concession likewise created expectations regarding a different future, speeding up new thoughts on the relationship between Denmark and Greenland. 2) The Commission was furthermore obliged to find a solution which could be implemented by Greenlandic politicians at a time when even the Greenlandic society had become complex, but did not have the requisite number of educated Greenlanders. In this respect the Commission felt its task was to contribute to the drafting of blue-prints which were not binding upon the future home rule authorities but which, on the other hand, would be applicable if so desired. Such proposals, for instance regarding Greenland schools, radio and churches, were therefore purposely drafted by the Greenlandic members of the Commission, the remaining members contributing exclusively with their expert knowledge and experience stemming from their participation in legislative work for a great many years. Unanimity between Greenland and the Danish members was not attempted in this part of the Commissions work.

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ISI FOIGHEL 3) Finally, the work of the Commission on Home Rule was influenced by the distinct and obvious limitation, accepted by both parties, that the arrangements to be established would have to be in conformity with the Danish Constitution. Amending the Constitution was out of question.

The terms of reference of the Commission which have been accepted by the Danish as well as the Greenlandic members provided that introducing home rule should be done within ‘the frames of the unity of the Realm’. This principle was derived from Article 1 of the Danish Constitution. The assumption that national unity is to be preserved implied: - that upon home rule having been established, Greenland remains a part of the Danish Realm; - that sovereignty continues to be exclusively held with the authorities of the Realm (the Government and Parliament); - that home rule for Greenland cannot be established through a treaty based on international law, but exclusively on the basis of constitutional law through a Danish act by means of which the Danish Parliament delegates a certain, precisely defined, part of its competence to home rule, and - that only part of the competence of the authorities of the Realm may be delegated to home rule, just as only fields which pertain exclusively to Greenland but not to the Realm as a whole or to other parts of the Realm may come under home rule. Consequently, national unity means that certain fields, as for instance security, foreign policy, and currency policy must remain with the authorities of the Realm, just as it will not be possible to make an unlimited delegation of fields to home rule. However, there is also implied in national unity a significant, although somewhat diffuse, assumption of a political-moral nature regarding mutual solidarity between the various parts of the Realm which, among other things, involves mutual support and a willingness to take the interests of the Realm into due account in major issues. Against this background one may describe home rule as a particularly qualified type of self-government. Self-government means a statutory delegation of certain powers, so that parliament and the government refrain from legislating or administering certain fields, but leaves this to local organs, as for instance municipal self-government. The characteristic feature of home rule is that the powers which have been statutorily transferred are, in terms of their area, identical to the powers exercised by the national authorities in other parts of the Realm. As far as municipal self-government under the Constitution is concerned, the limitations upon the national authorities which the various types of self-government involve may be classified as functional ones, whereas the limitations upon the powers of the national authorities under home rule are territorial ones, the powers being limited to that part of the Realm which does not come under local home rule. In other words, the difference between municipal self-government as established by the Constitution and home rule is significant. 234

THE RIGHT OF A PEOPLE TO EXERCISE THEIR CULTURE – A SCANDINAVIAN MODEL The main purpose of home rule is to transfer (delegate) powers and consequently responsibility from Danish political authorities to Greenlandic political authorities which shall administer not only such community tasks as are taken over from the state, but which shall also establish rules to be applied in administration and have an independent financial responsibility for solving the various tasks. Consequently, the main task has been to try to implement this objective by creating the framework (the rules) in the Home Rule Act for exercising this responsibility and for the establishment of the competent executive organs. The home rule authorities should comprise of a popularly elected landsting (Greenland Assembly) and a landsstyre (Greenland Executive) elected by the assembly, so that the administration, at least for the time being, acts on behalf of the assembly. There is, however, nothing preventing the assembly from giving the administration independent powers in due course. It follows from the principle of national unity that certain fields cannot be transferred to home rule authorities. This applies particularly to such fields as constitutional law (including the highest branches of government, the right to vote at parliamentary elections as well as eligibility, the administration of justice and constitutional rights), external relations (including the treaty-making power), national finances (including the Central Bank and its functions), financial policy, monetary policy, currency policy, defense policy, criminal proceedings and imprisonment, as well as fundamental principles regarding the law of persons family law, inheritance law, and the law of contracts. Just as under the Faeroe Island home rule system there has been unanimity in relation to the Greenland home rule on the basic principle, that legislative power and the power of the purse should not be divided. There has, however, also been unanimity that this principle does not prevent those fields in which Greenlandic self-financing is not possible, at least not within the immediate future, may be transferred to home rule authorities, since it should be possible to grant government subsidies to such tasks. From national unity stems the distinct consequence that the power to maintain and develop foreign relations, which are part of Danish sovereignty, is vested in national authorities. This applies also to the power to enter into international obligations within areas which have come under home rule. Introducing home rule means that legislative powers, as well as other powers to establish rules, to some extent are transferred to Greenlandic home rule authorities. But where the Government’s undertaking of obligations under international law becomes consequential in areas where power to establish internal rules has been transferred to home rule authorities, the latter will have to cooperate in the necessary steps of implementation, including the adoption of new rules. Consequently, it becomes necessary, when entering into treaties, to engage in a prior consultation with home rule authorities. Both politically and legally the question of exploitation of mineral resources in Greenland gave rise to special problems.

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ISI FOIGHEL Under the Greenland Mineral Resources Act of 1965 the legislative position has been that ‘all mineral resources in Greenland belong to the state’ (Article 1 of the Act). Although the exclusive purpose of this provision is to establish that natural resources are not subject to private ownership, the phraseology of the Act has, in later years, been deemed offensive by the majority of the public of Greenland. It is interpreted as expressing the fact, that the state, i.e. Denmark rather than Greenland, has complete powers over the natural resources with the consequence, that Greenlandic political authorities have no decisive word on this issue, be it in relation to actual exploitation, the protection of environmental values, or the like. Furthermore, Inuit as well as First Nations living in Canada and in the United States have recently advanced claims of ‘aboriginal rights’ to natural resource found in the areas previously occupied by former colonial powers. These points of view, as well as the hope stemming from the believe in the existence of a tremendous richness of oil, and the issuance of concessions and actual exploitation on the Greenland Continental Shelf in 1975 put their mark on the debate in Greenland and came to a climax in the adoption of a resolution by the Greenlandic Provincial Council in November 1975. The effect of the resolution was that ‘mineral resources belong to the permanent population of Greenland’. As for the doctrine on ‘aboriginal rights’ as invoked in Canada and the United States it hardly seemed to amount to anything but ownership of a right to use surface soil, and it appeared to be connected with legal systems under which private individuals had ownership to soil as well as to subsurface resources. At any rate, the main purpose of the doctrine in Canada evolved so as to be interepreted that the indigenous population should not be relegated to a second-rate position compared to the position of the remaining population of Canada and its provinces under the federal Constitution. The doctrine had, however, at the time for the Commission’s report, not been recognized as a positive legal principle in Canada, nor in the United States. Furthermore, private ownership of soil is unknown in Greenland, and at the same time natural resources in Denmark are, on the whole, not subject to private ownership. Even if the doctrine on aboriginal rights had been generally accepted as an internationally recognized legal principle, its substance would hardly be applicable to the situation in Greenland. Although Greenland’s conception of the current legal position was to some extent based upon a misinterpretation of the Danish Mining Act, there was on the other hand, no doubt that the permanent population of Greenland has seen the current arrangement as an infringement, and during the debate in the Commission it was obvious that the previous phraseology could not be maintained which, incidentally, was not even desired by Denmark. From the Greenlandic side it was further claimed that sovereignty over natural resources stems from the Greenlandic people’s right to self-determination as formulated in the UN Covenants on Human Rights Article 1. Some members of the Commission felt that the Greenlanders were not a ‘people’ in the legal sense of the 236

THE RIGHT OF A PEOPLE TO EXERCISE THEIR CULTURE – A SCANDINAVIAN MODEL Covenant. Others felt that the Greenlanders had already used their right to selfdetermination in 1953 by opting for the solution that Greenland should constitute an integral part of the Kingdom of Denmark. The basic principles agreed upon on natural resources have been laid down in section 8 of the Home Rule Act which runs as follows: (1) The resident population of Greenland has fundamental rights to natural resources of Greenland. (2) To safeguard the rights of the resident population in respect of nonliving resources and to protect the interests of the unity of the Realm, it shall be enacted by statute that preliminary study, prospecting and the exploitation of these resources are to be regulated by agreement between the Government and the Landsstyre. (3) Before any agreement under subsection (2) is entered into, any member of the Landsstyre may demand that the matter be laid before the Landsting, which may determine that the Landsstyre may not consent to an agreement of the proposed content.

The first paragraph of this section amounts to a political declaration of principle. Although an actual legal construction is therefore hardly possible, one may stress that the political/moral demands supporting the recognition of fundamental rights to natural resources of the permanent population stem, above all, from an emotional cohesiveness between a population and the land which it has inhabited for centuries.This cohesiveness naturally leads to demands for certain rights not covered by traditional legal parlance. The official comments to the act further states that the rights to be taken into account in framing the arrangement on natural resources are the following: (1) A right to a decisive influence in the area of natural resources, in particular an influence upon the framing of a natural resources policy and the speed with which it should be implemented. (2) A right to secure contraction of any possible detrimental influences upon the physical or social environment so that the traditional business life, culture, and way of life of Greenland is preserved. (3) A right to a dividend of enterprises exploiting natural resources with a view to creating a financial basis for an improvement of living conditions, particularly in the long run.

None of these rights are absolute rights in the legal sense, and they must also be seen in the light of the constitutional structure desired for the nation and the population, which has been acknowledged by both parties. Consequently, the provisions of the Home Rule Act concerning the natural resources arrangement have been framed as a mutual right of veto. In principle the right of veto may serve its purpose without ever being explicitly exercised. The 237

ISI FOIGHEL existence of the right of veto will in itself be a reality in relation to the administration’s drafting of proposals as well as in relation to debates and submissions and direct negotiations between the Government and the home rule authorities. The mere existence of the right of veto may be seen as a means available to both parties to force a development or concrete decisions agreeable to them. The right of veto will namely enable them to specify the particular assumptions and conditions upon which their accession to a proposed decision rests. In other words, the right of veto may operate as an effective instrument without actually being exercised. The issue regarding the division and application of any possible future income from natural resources accruing to the Treasury involved serious elements of uncertainty at the time the Home Rule Act was adopted, both in relation to the question whether natural resources actually existed, the magnitude of any possible resources, the financial outcome of any exploitation as well as the timing of it. Against this background the Home Rule Commission proposed that public revenue from natural resources in Greenland should be first applied for compensating the previous transfer of capital from Denmark to Greenland. There was a joint Danish/Greenlandic desire that home rule authorities should become independent of subsidies from Denmark and as such Danish subsidies had an inversely proportional relationship with any increase in income from natural resources. Any other additional public revenue should be for the benefit of the nation as a whole as well as for Greenland, so that part of such additional income should belong to Greenland. Article 9 of the Home Rule Act concerns a special subject, namely that of the Greenlandic language. The idea was that the introduction of home rule should also lead to a formal recognition of Greenlandic as the main language of Greenland. In an overriding way Greenlandic is an integral part of the way in which the population of Greenland conceives its own identity, and it is consequently of major significance in maintaining and strengthening this identity. As a national language Danish is, firstly, the linguistic link between population groups of the entire nation, but as for Greenland it is, furthermore, a means of communication with the world at large, due to the fact that, conditions being what they are, this communication takes place through Danish authorities and Danish institutions. Above all, the major part of higher education must take place at educational institutions in Denmark. Consequently, the Home Rule Act also provides for thorough teaching of the Danish language. In public relations both languages may be applied on equal terms. This involves, above all, that both languages may be applied in the relations between Greenland and Danish authorities, and that any citizen of Greenland in addressing or contacting public authorities may claim, that the contact be carried out in the language which the person in question prefers to use. Incidentally, this is in line with the practice which has been used by Greenlandic courts in later years. The Greenland Home Rule Act together with accessory legislation - which was adopted by Parliament on the 29 November 1978 - serves the purpose of meeting 238

THE RIGHT OF A PEOPLE TO EXERCISE THEIR CULTURE – A SCANDINAVIAN MODEL Greenland’s wishes within the bounds of local influence upon political decisions which in those years characterized developments also existing elsewhere in Danish society. The basic philosophy may be expressed in the terms, that the population of Greenland did not wish national independence but improved possibilities of strengthening and expanding the identity of Greenland through an increased independent responsibility. The Act is likewise an expression of the fact, that the principle of equality between Greenland and the rest of Denmark has been abandoned in the light of a recognition of the impossibility of creating equality between population groups living under conditions so much at variance. Instead the act is based upon the principle of equal rights regarding responsibility and powers concerning the future of the respective societies. The introduction of Home Rule in Greenland meant entrusting to the population of Greenland and its elected representatives not only important, but at the same time difficult and perhaps even onerous tasks. It was, therefore, only natural that implementation of home rule should take place as a gradual process and on the basis of a carefully worked out schedule, which was also Greenland’s desire. The 25 years which have passed since home rule was introduced in Greenland has shown beyond any doubt, that a sense of mutual understanding in implementing the transfer of public tasks, and the overall relation between the two parts of the Realm has evolved in a harmonious manner satisfactory to Greenland as well as to Denmark.

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PART III CROSS-BORDER COOPERATION, INTERNATIONAL MONITORING AND IMPLEMENTATION

INTERNATIONAL GUARANTEES OF AUTONOMY AUTONOMY (INTERNATIONAL GUARANTEES OF AUTONOMY) Yoram Dinstein 1. What is autonomy? Linguistically, the term is derived from Greek: auto means self and nomos is law. Autonomy, in the legal-political vocabulary, denotes selfgovernment. Self-government is obviously a broad concept applicable in manifold contexts. It is therefore necessary to clarify that in this paper it will be confined to a system of self-government granted to a particular region (or several regions) within a certain country. In this sense, autonomy is not to be confused with federalism.1 Like federalism, an autonomy regime is predicated on the principle of political integration without homogeneity. However, federalism is a system of general decentralization of powers dividing the entire (or almost the entire) country into cantons (by whatever semantic designation) all of which enjoy a prescribed measure of self-government. Equal or essentially similar self-government of all the cantons is the rule in a federal State. In an autonomy regime, the degree of self-government granted to a chosen region (or regions) is unique and withheld from other parts of the country. An autonomy regime is thus an exception to the rule: it is based on a preferential treatment of a selected region (or regions). An autonomy regime is usually established in a region inhabited largely by a national minority. The gist of the international legal protection of minorities at the present time is expressed in Article 27 of the 1966 International Covenant on Civil and Political Rights: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own 2 language.’

1

See R. Bernhardt, ‘Federalism and Autonomy’ in Y. Dinstein (ed.), Models of Autonomy (Transaction Books, 1981) pp. 23−47. 2 International Covenant on Civil and Political Rights, 1966, (1966) United Nations Juridical Yearbook 178, 186.

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YORAM DINSTEIN A parallel provision appears in Article 30 of the 1989 Convention on the Rights of the Child.3 In the opinion of the present writer, the rule encapsulated here is declaratory of customary international law as it exists today. The categories of minorities benefiting from international legal protection pursuant to Article 27 are solely ethnic, religious and linguistic: other types of minorities are excluded from the range of that protection (although they may benefit from some protection under domestic law). It is frequently argued that the rights conferred in Article 27 are bestowed only on ‘persons belonging to . . . minorities’, and not on the minority groups as such.4 But in the opinion of the present writer, the correct approach is that Article 27 confers collective human rights on minorities as groups and not merely on the individuals belonging to such minorities.5 The collective human rights granted to ethnic, religious or linguistic minorities apply throughout every State, irrespective of any autonomy regime. But, of course, an autonomy arrangement ensures the implementation of the minority’s collective human rights by putting the beneficiaries in charge regionally. Within the autonomous region, the minority can take direct action in order to secure the development of its own separate culture, religion or language. It must be appreciated that, insofar as religious and linguistic minorities are concerned, an autonomous arrangement is the optimal solution: such minorities cannot ask for more. However, that is not necessarily the case with an ethnic minority. An ethnic minority consists of a people or a part of a people. When a people constitutes a majority in a particular region of a State, it is entitled to selfdetermination. As common Article 1(1) of the twin International Covenants of 1966 (the one on Civil and Political Rights, and the other on Economic, Social and Cultural Rights) proclaims: ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their 6 economic, social and cultural development.’

The right of self-determination is accorded to all peoples wherever they are, regardless of the actual conditions in which they live. Even if an ethnic minority enjoys the full spectrum of protection pursuant to Article 27 of the Covenant on Civil and Political Rights – and notwithstanding the fact that it already benefits from 3

Convention on the Rights of the Child, 1989, 28 International Legal Materials (1989) 1457, 1468. 4 See e.g., A.H. Robertson and J.G. Merrills, Human Rights in the World: An Introduction to the International Protection of Human Rights (Manchester University Press, Manchester, 1989), p. 139. 5 See Y. Dinstein, ‘Collective Human Rights of Peoples and Minorities’, 25 International and Comparative Law Quarterly (1976), p. 118. 6 International Covenant on Civil and Political Rights, supra note 2, at 179; International Covenant on Economic, Social and Cultural Rights, 1966, (1966) United Nations Juridical Yearbook, pp. 170, 171.

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AUTONOMY (INTERNATIONAL GUARANTEES OF AUTONOMY) an autonomy regime − it is entitled to freely determine its political future as a people. Provided that the people is territorially concentrated in a specific geographic region where it forms a majority, it may opt for internal self-determination within the borders of a ‘multinational’ State (preeminently through an autonomy regime), but it can also invoke the right of external self-determination, namely, secession and the formation of a new sovereign State.7 2. The purpose of an autonomy regime granted to a particular region is to enable a national minority to become a regional majority. Still, an autonomy regime is not always an option available to a national minority group. If that minority is dispersed all over a State in such a manner that it does not form a demographic majority in any geographic portion of the country, the grant of autonomy to a particular region would not alter the situation that the minority (nationally) would remain a minority (regionally). In any event, an autonomy regime cannot remove or resolve all problems characterizing cohabitation of majority and minority groups. In fact, the very grant of self-government to a national minority (which is a regional majority) would mean that – within that region – the national majority (which is a regional minority) may need protection from the local (autonomous) authorities. Furthermore, assuming that there are several minorities in the country, the creation of regional autonomy for one of them would not solve the problems of the others (who would remain minorities both nationally and regionally and whose relations with the regional authorities are liable to be no less – perhaps more – troublesome than with the central government). Additionally, the solution of the problem of members of a national minority living in the region subject to an autonomy regime does not address (and perhaps even complicates) the predicament of members of the same national minority living elsewhere in the country without access to the benefits of autonomy. The texture of an autonomy regime changes from one arrangement to another, there being no hard and fast rules defining the degree of self-government accorded to a region benefiting from autonomy. There is room for many alternative formulas, and it is important to scrutinize not only the latitude given to the local authorities in running their region but the measure of influence that they have on the three branches (executive, judicial and legislative) of the central government. As well, there is a question whether – and to what extent − the autonomous regime is allowed to establish some direct international contacts with foreign countries (especially countries with cultural affinity to the autonomous region). The question why a certain people is satisfied with (or at least reconciled to) the status of internal self-determination − living in an autonomous region – whereas another insists on external self-determination is impossible to answer. Sometimes 7

On the right to secession, see Y. Dinstein, ‘self-Determination Revisited’, in M. RamaMontaldo (ed.) International Law in an Evolving World (Liber Amicorum Eduardo Jiménez de Aréchaga) pp. 241−253.

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YORAM DINSTEIN this can be due to economic, social and political incentives offered with a view to maintaining the territorial integrity of a ‘multinational’ State. But on other occasions, a people would rather have sovereignty even at the expense of economic prosperity. Improved living conditions per se provide no assurance of a successful autonomy regime. It is very difficult to explain why in the same country – Spain − autonomy is an obvious success in Catalonia but, notwithstanding tremendous economic progress, is still causing unabated terrorism in the Basque region.8 There is no set formula of successful autonomy that can be imitated or transplanted elsewhere. Once autonomy is introduced, there can movement onwards to full independence. But any movement backwards to unilateral abolition of the autonomy by the State concerned is bound to backfire. The two examples are Eritrea and Kosovo. In both places, autonomy was largely accepted by the ethnic minority until arbitrarily abolished by the State (Ethiopia and Yugoslavia, respectively). The abolition of autonomy only radicalized the situation and fuelled the fire of secession: Eritrea is already an independent country and the Kosovars are currently fighting for independence (notwithstanding the restoration of autonomy following Security Council 1244 (1999) (see infra, IV(7)). 3. There are three primary scenarios in which an autonomy regime is granted to a specific region in a country, and not surprisingly the prospects of having the desired effect of peaceful cohabitation vary with the factual background: (1) When autonomy within the boundaries of a State (internal selfdetermination) is all that a people wishes for – what the people wants is what it gets. The result, obviously, is that the autonomy regime functions in a generally satisfactory manner. Two illustrations are Greenland (within Denmark) and Catalonia (within Spain). (2) When autonomy within the boundaries of a State (internal selfdetermination) is not what a people wants – the people aspires to full-fledged statehood (external self-determination), but realistically finds itself compelled to accept autonomy as a matter of political compromise – there are built-in tensions that frequently flare up. In this scenario, all too often, autonomy is reluctantly offered and ungratefully received.9 The result is a mixed success: much depends on whether or not the internal situation is affected by crossborder interference by neighbouring States. If a neighbouring State (with a similar ethnic composition as in the autonomous region) has irredentist demands, autonomy is generally doomed to failure. An example is Memel in the period between the World Wars, in which German interference (even prior to 8

See H. Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (University of Pennsylvania, Philadelphia, 1990), pp. 275−279. 9 See R. A. Friedlander, ‘Autonomy and the Thirteen Colonies: Was the American Revolution Really Necessary?’, in Dinstein, supra note 1, pp. 135, 136.

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AUTONOMY (INTERNATIONAL GUARANTEES OF AUTONOMY) the Nazi takeover of power) generated disputes and a singularly important judicial decision by the Permanent Court of International Justice.10 Of course, if the neighbouring States encourages the local population to reconcile itself to the autonomous regime – and gives no help at all to secessionist movements – autonomy may be crowned with success. The best illustrations are South Tyrol (where Austria has played a salutary tranquilizing role) and the Åland Islands (where Sweden has done the same). (3) When autonomy is recognized by all the parties concerned as a stop-gap measure – a temporary stage – before a transition to full-fledged statehood, any delay in the process is apt to cause friction. The prime example today is the Palestinian autonomy. Everybody knows that a sovereign State of Palestine will emerge sooner or later. The violence characterizing the region at the time of writing is due to inability to reach a negotiated agreement rapidly enough. 4. Autonomy is not a regime, which general (customary) international law requires of a State in any set of circumstances. It is introduced by the State (in a particular region) either of its own free will – through constitutional or legislative measures – or on the basis of an international instrument: an agreement (bilateral or multilateral) with some other States or a resolution of an international forum (nowadays, the UN Security Council or General Assembly). Often, there is an amalgamation of these modalities. However, the question whether the State introducing the autonomy regime acted exclusively on its own initiative or pursuant to an international instrument is of cardinal import. This is preeminently true should the State desire to amend the autonomy regime or revoke it altogether, against the wishes of the ethnic minority benefiting from the arrangement. As indicated, an attempt to abolish unilaterally an autonomy regime (notwithstanding protests emanating from its beneficiaries) is bound to have far-reaching political reverberations (perhaps kindling a fire that will grow into a conflagration). But legally speaking, if the foundation of the autonomy regime is solely domestic, the State need only observe the strictures of its own legal system as regards constitutional or legislative amendments (it being understood that a constitutional amendment is more complex than the revision of ordinary legislation). On the other hand, if an autonomy regime is based – in whole or in part – on an international instrument, the State can no longer do as it pleases: it must act in compliance with its international undertakings. The distinction is epitomized in the Memel case, which came before the Permanent Court of International Justice in 1932 on the basis of an international convention (of 1924) governing the autonomy in the territory.11 When other States or international fora are parties to the creation of an autonomy regime, it may be said that they have guaranteed that regime. A guarantor 10

Interpretation of the Statute of the Memel Territory (Merits), (1932), (AB/49), 3 World Court Reports, 35 (M.O. Hudson ed., 1938). 11 See supra, note 9 and infra, (1).

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YORAM DINSTEIN is always a third party, which is entitled – and may even be obligated – to take legal action in case the instrument serving as the fons et origo of the autonomy regime is breached. Here are examples for the various modes of creating a legal foundation for an autonomy regime: 1. By a Multilateral Treaty Alone This happens when, as a result of a major war, borders are redrawn. The victors decide to grant a State sovereignty over a certain region subject to an autonomy arrangement. The treaty lies at the root of the arrangement. Example: Memel An autonomy regime (in the period between the two World Wars) was based on: (1) Article 99 of the 1919 Peace Treaty of Versailles, pursuant to which Germany renounced title to Memel in favour of the Principal Allied and Associated Powers.12 (2) The Paris Convention Concerning the Territory of Memel, concluded in 1924 by Britain, France, Italy, Japan and Lithuania, whereby the four Principal Allied Powers transferred to Lithuania title to Memel, subject to the Convention’s stipulations.13 The Convention provided that ‘[t]he Memel Territory shall constitute, under the sovereignty of Lithuania, a unit enjoying legislative, judicial, administrative and financial autonomy within the limits prescribed by the Statute set out in Annex I’.14 2. By a Bilateral Agreement Alone This happens when a certain region is on its way to statehood. As a State in statu nascendi, it concludes an agreement of autonomy (as a transitory stage) with the administering country. The agreement lies at the root of the autonomy regime. Example: Palestinian Autonomy (i) An autonomy regime was created by an international agreement between Israel and the PLO (the legal status of the agreement is not entirely clear, since one of the parties is not a State, yet it is looked at by both parties as an international treaty). This was done in the 1994 Cairo Agreement on the

12

Versailles Treaty of Peace with Germany, 1919, 2 Major Peace Treaties of Modern History 1648−1967 (F.L. Israel (ed.), 1967), pp. 1265, 1338. 13 Paris Convention Concerning the Territory of Memel, 1924, 29 League of Nations Treaty Series pp. 85, 87−89. 14 Ibid., p. 89.

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AUTONOMY (INTERNATIONAL GUARANTEES OF AUTONOMY) Gaza Strip and the Jericho Area,15 superseded by the 1995 Washington Interim Agreement on the West Bank and the Gaza Strip.16 (ii) The agreements of 1994 and 1995 are bilateral. Yet, they were ‘witnessed’ by outside parties. Thus, the Interim Agreement was formally witnessed by the USA, the Russian Federation, Egypt, Jordan, Norway, and the European Union.17 The legal repercussions of the act of witnessing are obscure. 3. By Local Legislation Alone This happens when a certain region constitutes incontestably a part of an existing State, which chooses of its own free will (at least, without pressure from the outside) to bestow on the region a special autonomous regime. Example: Greenland - An autonomy regime was created by the Denmark in the Greenland Home Rule Act of (in force since 1979, following a referendum).18 4. By Local Legislation Based on Both Bilateral and Multilateral Treaties This happens when a State confers autonomy on a region (usually a border region) as a result of pressure from the outside. Domestically, the autonomy arrangements are derived from the local legislation and/or constitution. Internationally, the arrangements flow from – and follow – a bilateral and/or multilateral treaty. Example: South Tyrol The autonomy regime is based on: (i) Article 116 of the Italian Constitution, promulgated in 1947 (in force since 1948), attributes autonomy – the forms and conditions of which are to be detailed by statutes – to Trentino-Alte Adige (as well as four other regions: Sicily, Sardinia, Friuli-Venetia Julia, and the Valle d’Aosta).19 (ii) Italian legislation: First Autonomy Statute of 1948, replaced by New Autonomy Statute of 1972.20 15

Israel-Palestine Liberation Organization: Agreement on the Gaza Strip and the Jericho Area, 1994, 33 International Legal Materials (1994) p. 62. 16 Israel-Palestine Liberation Organization: Interim Agreement on the West Bank and the Gaza Strip, 1995, 36 International Legal Materials (1997), p. 551. 17 Ibid., p. 568. 18 See I. Foighel, ‘A Framework for Local Autonomy: The Greenland Case’, in Dinstein, supra note 1, pp. 31−52. The text of the Greenland Home Rule Act of 1978 is reproduced in H. Hannum (ed.), Documents on Autonomy and Minority Rights (Martinus Nijhoff, 1993) pp. 212, 213−218 (‘Greenland’). 19 Constitution of the Republic of Italy in G.H. Flanz (ed.) Constitutions of the Countries of the World, Italy (1987) pp. 45, 75. 20 See C. Schreuer, ‘Autonomy in South Tyrol’, Dinstein, supra note 1, pp. 53, 55, 65. The text of the 1972 Autonomy Statute for the South Tyrol is reproduced in Hannum, supra note 18, pp. 460, 462–495 (‘south Tyrol’).

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YORAM DINSTEIN (iii)

(iv)

Bilateral treaty: an international agreement between Italy and Austria (the so-called De Gasperi-Gruber agreement) was concluded in Paris in 1946.21 Additionally, an informal agreement between the same two countries (known as ‘the Package’ and Operational Calendar) was arrived at in 1969.22 Multilateral treaty: the 1947 Paris Peace Treaty of Peace between the Allied Powers and Italy incorporates the text of the bilateral agreement of 1946 in Annex IV.23 Article 10(2) of the Treaty sets forth: ‘The Allied and Associated Powers have taken note of the provisions (the text of which is contained in Annex IV) agreed upon by the Austrian and Italian Governments on September 5, 1946’.24 This clause appears to vest each of the Allied and Associated Powers with a jus standi should there be a dispute concerning the implementation of the bilateral Austrian-Italian agreement. But it is noteworthy that the Settlements of Dispute stipulation in the Treaty of Peace (Article 83,25 providing for the establishment of a Conciliation Commission) does not apply to disputes, which may arise in giving effect to Article 10 or Annex IV.

5. By Local Legislation Based on a General Assembly Resolution This happens when a State desires to extend its sovereignty over a region beyond its control, and it can only accomplish that with the cooperation of the United Nations (either the Security Council or the General Assembly, depending on which organ is seized with the matter). The price of sovereignty may be autonomy. Example: Eritrea The autonomy regime (which was in force until 1962, when Eritrea was fully annexed by Ethiopia26 [of course, Eritrea has subsequently gained independence]) was based on: (i) Ethiopian Federal Act incorporating the Constitution of Eritrea of 1952.27

21

For the text, see infra, note 23. See Schreuer, supra note 20, pp. 56−57. 23 Paris Treaty of Peace with Italy, 1947, 4 Major Peace Treaties of Modern History 16481967 (F.L. Israel (ed.), 1967) pp.2421, 2477−2478. 24 Ibid., p. 2427. 25 Ibid., pp. 2462−2463. 26 On the liquidation of the Eritrean autonomy, see H. Erlich, ‘The Eritrean Autonomy 19521962: Its failure and Its Contribution to Further Escalation’, in Dinstein, supra note 1, pp. 171, 179−180. 27 See T. Meron and A.M. Pappas, ‘The Eritrean Autonomy A Case Study of a Failure’, in Dinstein, supra note 1, pp. 183, 187−188. The text of the Constitution of Eritrea is reproduced in Hannum, supra note 18, pp. 628, 633−661. 22

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AUTONOMY (INTERNATIONAL GUARANTEES OF AUTONOMY) (ii) Detailed recommendations – highlighted by the premise that ‘Eritrea shall constitute an autonomous unit federated with Ethiopia under the sovereignty of the Ethiopian Crown’ – were laid down in UN General Assembly Resolution 390(V), adopted in December 1950.28 At the time, Eritrea was under British administration. Power was handed over by Britain, in 1952, upon the implementation of Resolution 390(V). Thus, the assumption of control of Eritrea by Ethiopia and the establishment of autonomy there occurred simultaneously (after the necessary legal arrangements had been worked out by UN legal experts).29 6. By Local Legislation Based on a Bilateral Treaty as well as a Resolution of the Council of the League of Nations This is the same scenario, except that another State is contesting the extension of sovereignty. The sovereignty-subject-to-autonomy arrangement may then be contingent on a bilateral agreement with that other State. Example: Åland Islands An autonomy regime is based on: (i) Finnish constitutional provision of 1994.30 (ii) Finnish legislation from 1922 to 1991.31 (iii) The Finnish domestic legislation was engendered by a bilateral agreement between Sweden and Finland, 1921.32 (iv) The terms of the bilateral agreement were approved by the Council of the League of Nations in 1921, and the application of its provisions was put under its supervision.33 (v) Prior to the conclusion of the agreement, the League’s Council was seized with the entire issue of sovereignty over the Åland Islands. The Council considered itself competent to resolve the matter because Finland was a new State and its borders were not yet deemed stabilized. Ultimately, the Council recognized that sovereignty belonged to Finland, subject to two restrictions: preservation of the separate (Swedish) culture and language of the islanders

28

General Assembly Resolution 390(V), 1950, 3 United Nations Resolutions, Series I: Resolutions Adopted by the General Assembly 94, id. (S.J. Djonovich ed., 1973). 29 See (1952) Yearbook of the United Nations pp. 262−266. 30 See M. Suksi, ‘On the Entrenchment of Autonomy’, in M. Suksi (ed.), Autonomy: Applications and Implications (Martinus Nijhoff Publishers, The Hague, 1998) pp. 151, 155 31 On the legislative history, see R. Lapidoth, Autonomy: Flexible Solutions to Ethnic Conflicts (United States Institute of Peace Press, Washington, D.C., 1996) p. 71. The text of the 1991 Act on the Autonomy of Åland is reproduced ‘Åland Islands’, in Hannum, supra note 18, pp. 115, 117–140. 32 The text of the agreement is reproduced in ‘Åland Islands’, ibid., pp. 142−143. 33 Ibid., p. 143.

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YORAM DINSTEIN within an autonomy arrangement, and demilitarization.34 Both Sweden and Finland accepted the Council’s decision.35 (vi) (The United Nations did not endorse the League of Nations’ guarantee36 (which is no longer necessary considering the present the relations between Finland and Sweden)). (vii) (The Finnish-Swedish bilateral agreement is not to be confused with the multilateral Geneva Convention of 20 October 1921 on the NonFortification and Neutralisation of the Åland Islands,37 which is an outgrowth of the same Council decision but does not deal with the issue of autonomy). 7. By Decree of the Security Council This is an exceptional scenario. Example: Kosovo. The chain of events here was as follows: (i) The Constitution of the Socialist Federal Republic of Yugoslavia defined Kosovo as an Autonomous Province, a constituent part of Serbia.38 (ii) Kosovo’s autonomy was abolished by Serbia in March 1989, and subsequent diplomatic efforts to bring about its restoration failed.39 (iii) After violence had erupted in Kosovo, the Security Council − in Resolution 1160 (1998) – acting under Chapter VII of the UN Charter − expressed support for ‘an enhanced status for Kosovo which would include a substantially greater degree of autonomy and meaningful self-administration’.40 In Resolution 1199 (1998), also acting under Chapter VII of the UN Charter, the Council affirmed that the deterioration of the situation there ‘constitutes a threat to peace and security in the region’.41 (iv) When no negotiated agreement was reached, NATO conducted an air campaign against Yugoslavia, with a view to compelling it to accept a settlement of the issue of Kosovo. By using inter-State force without getting the

34

Ibid., p. 141. Ibid., p. 142. 36 See T. Modeen, ‘Aaland Islands’, 12 Encyclopedia of Public International Law 1, 3 (R. Bernhardt ed., 1990). 37 Geneva Convention on the Non-Fortification and Neutralisation of the Aaland Islands, 1921, 1 International Legislation 744 (M.O. Hudson ed., 1931). 38 The relevant provision of the Yugoslav Constitution is reproduced in ‘Yugoslavia’, in Hannum, supra note 18, pp. 761, 763. 39 See R. Caplan, ‘International Diplomacy and the Crisis in Kosovo’, 74 International Affairs (1998) pp. 745, 748−750. 40 Security Council Resolution 1160 (1998), UN Doc. S/RES/1160 (1998) at 2. 41 Security Council Resolution 1199 (1998), 38 International Legal Materials 249, 250 (1999). 35

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AUTONOMY (INTERNATIONAL GUARANTEES OF AUTONOMY) prior authorization of the Security Council for such enforcement action, NATO acted in breach of the Charter of the United Nations.42 (v) In June 1999, the Security Council adopted Resolution 1244 (1999), which – determining that ‘the situation in the region continues to constitute a threat to international peace and security’ and again acting under Chapter VII − decided that a political solution to the Kosovo crisis shall be based on certain principles, including ‘the establishment of an interim political framework agreement providing for a substantial self-government for Kosovo’, without impinging on the sovereignty and territorial integrity of Yugoslavia (pending final settlement, an international civil presence was established in Kosovo, promoting ‘substantial autonomy and self-government’).43 (vi) At the time of writing, the situation in Kosovo is far from resolved. 5. At the present juncture in the evolution of international law, the most significant guarantee that can be issued to an autonomous regime is one by the UN Security Council. The reason is two-fold: (i) The Security Council is empowered under the UN Charter to adopt binding decisions in matters affecting international peace and security, whereas the General Assembly can only issue recommendations (which may or may not be followed). (ii) Under the UN Charter, the Security Council is vested with a monopoly over the use of inter-State force in cases other than self-defence (in response to an armed attack). The Council, and the Council alone, has the power to determine that a situation (like the unilateral abolition of autonomy) amounts to a threat to the peace. The Council, and only the Council, can impose military sanctions – or authorize enforcement action – against a State defying it. In fact, the Council may determine that a revocation of an autonomy regime constitutes a threat to the peace even when that regime was not originally subject to any guarantee by the Council. It must be borne in mind, however, that the Security Council is a political – not a judicial – body. Hence, the Council cannot be expected to adjudicate the rights and duties of any parties to a conflict in accordance with international (let alone domestic) law. Also, the Council may be unable to function owing to the exercise (or even the threat) of the veto power by one of the five Permanent Members or the lack of the majority (9 out of 15 Members) required to adopt a decision. Certainly, 42

See Y. Dinstein, War, Aggression and Self-Defence (Cambridge University Press, 2001) pp. 271−273 43 Security Council Resolution 1244 (1999), 38 International Legal Materials (1999), p. 1451.

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YORAM DINSTEIN the Council is ill-equipped to handle ‘garden variety’ disputes concerning the application or interpretation of law: it takes a crisis affecting international peace and security to move the Council. However, once a crisis erupts, the Security Council is positioned to handle it with full authority and, if necessary, armed force.

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INTERNATIONAL CRIMINAL LAW: PROTECTION OF MINORITY 1 RIGHTS Lyal S. Sunga 1. INTRODUCTION The quest for greater autonomy on the part of ethnic, racial and religious minorities has sometimes been met with fierce reaction from Governments and in extreme cases, with violence and even war. In many instances, the reluctance of the State to deal seriously with minority rights stems from the concern that such claims could eventually lead to a devolution of power from the central Government or even to the break up of the State. The outbreak of numerous civil wars since the end of the Cold War underscores how social tension can take the form of extreme nationalism and degenerate into protracted ethnic, racial and religious violence. Tragically, even in the era of the United Nations collective security system, the international community has largely failed to prevent massive violations of minority rights. Until very recently, international criminal justice has been more concept than reality. For the victims of genocide in Nazi Germany, the former Yugoslavia, Rwanda or Bangladesh, or of severe violations committed in Angola, Cambodia or Sierra Leone, international criminal justice has been either completely absent or ‘too little too late’. One can even consider the UN Security Council’s International Criminal Tribunals for the former Yugoslavia and Rwanda primarily as salves for the international community, which had failed to prevent both the outbreak of war in these countries and the horrible atrocities that attended them. Despite this discouraging record, the international community at large has been forced to recognize that, unless it checks systematic violations prospectively i.e. before they are committed, such violations can destroy not only the stability and territorial integrity of individual States, but also regional and international peace and security. It is argued in the present paper that the institutionalization of international criminal law enforcement since 1945 has been propelled largely by the international community’s concern to halt, suppress and deter the kinds of violations typically perpetrated in serious ethnic, racial and religious conflicts and that international criminal law enforcement constitutes in effect an important form of minority rights protection. Moreover, although neither the International Criminal Court’s2 Statute nor its Rules of Procedure and Evidence refer explicitly to ‘minority’ or ‘minority rights’, the ICC is designed to provide deterrence on a more prospective and global basis than the international criminal tribunals, and therefore the ICC holds out 1 2

The author thanks Dr. Ilaria Bottigliero for her helpful comments on this paper. The International Criminal Court is hereinafter referred to as the ‘ICC’.

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LYAL S. SUNGA greater promise for the effective protection of minority groups against the severest forms of abuse.3 In line with this argument, we first relate how severe minority rights violations played a critical role historically in the outbreak of the Second World War and the Allied Powers’ decision to establish the Nuremberg and Tokyo Tribunals. Second, we sketch the development of minority rights protection in the period from 1945 to the end of the Cold War, and we underline that although the international community has generally been quite ambivalent about the issue, it has had to resort to the establishment of ad hoc international criminal tribunals to address severe violations of minority rights where domestic jurisdictions have failed to do so. Finally, we consider the relevance of the ICC’s material jurisdiction and procedures to strengthen minority rights protection in future. 2. INTERNATIONAL CRIMINAL LAW AND MINORITY RIGHTS FROM 1945 TO THE END OF THE COLD WAR The potential for minority tension to lead to violence and even the collapse of the State has always made Governments wary of addressing minority problems at home. Equally, Governments confronted with minority rights challenges commonly consider international attention to these questions as unwelcome interference in their domestic affairs. The traditional ambivalence of States on minority rights questions partly accounts for the international community’s failure to deal effectively with Nazi Government policies prior to World War II. The stigmatization and persecution of the Jewish, Roma and Sinti minority groups, as well as the elderly, homosexuals and disabled persons, constituted a key element of the Nazi Party programme since its rise to power in 1933. Hitler’s skilful manipulation of minority rights prior to the opening of hostilities as a pretext to seize the Sudetenland and snatch the Free City of Danzig realized the worst fears of democratic Governments as to the vulnerability of political and legal sovereignty in the face of insistent minority rights claims. The systematic persecution of minorities at home prepared the German people for aggression to be projected internationally and in this sense, the abuse of minorities in Germany contributed directly to the outbreak of the Second World War.4 For too

3

Statute of the International Criminal Court, adopted in Rome in a non-recorded vote, 120 in favour, seven against and 21 abstaining, on 17 July 1998 (A/CONF. 183/9); entered into force on 1 July 2002, ratified by 88 States as of 1 February 2003, hereinafter referred to as the ‘Rome Statute’. 4 See ‘International Military Tribunal (Nuremberg): Judgment and Sentences’, of 1 October 1946, 41 American Journal of International Law (1947) at p. 217, particularly the sections entitled ‘Invasion of Austria’ as well as Hitler’s speech to the Reichstag of 1 September 1939 in which he bitterly denounced the oppression of German minorities in Poland and the Free City of Danzig. See also R. B. Bilder, Can Minorities Treaties Work? in Y. Dinstein and M. Tabory (eds.), The Protection of Minorities and Human Rights (1992) pp. 59−82.

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INTERNATIONAL CRIMINAL LAW: PROTECTION OF MINORITY RIGHTS long left unchecked by Chamberlain’s appeasement policy,5 American isolationism,6 and Stalin’s cynical mutual non-aggression pact with Hitler,7 the Nazi Government was left a free hand to form Axis power alliances and pursue grand imperial designs for world domination, until ‘blood, toil, tears, and sweat’ eventually assured Allied victory.8 Look at the immense cost: between 50 and 60 million deaths,9 countless injured and billions of dollars in property damage, including the massive destruction of cultural and personal property, not only in Europe but in other theatres of the conflict. In the Far East, Japanese forces perpetrated systematic murders and mass rape as early as 1937 in Nanjing and committed horrendous atrocities against other peoples in the countries they invaded throughout the duration of World War II under the guise of aiding peoples to liberate themselves from colonial domination. The point is that the international community ignores severe minority rights violations at its own peril and it can become very costly not to intervene. The massive suffering brought about by the Second World War had an inescapable dimension of ethnic persecution, genocide, and severe minority rights violations, from the events leading to the outbreak of war, to its fateful conclusion, the setting up of the Nuremberg and Tokyo International Military Tribunals and the post-World War II reformation of the international legal order. World War II should have taught Governments that they can not stand by while a Government persecutes its own citizens, not only because human dignity should be considered a matter of 5

See A. J. Crozier, Appeasement and Germany’s Last Bid for Colonies (1988); K. Robbins, Appeasement: Second Edition (1997); S. R. Rock, Appeasement in International Politics (2000); and A. L. Rowse, Appeasement: A Study in Political Decline: 1933−1939 (1963). 6 See M. Jonas, Isolationism in America: 1935−1941 (1966); S. Adler, The Isolationist Impulse: Its Twentieth-Century Reaction (1966) and R. W. Tucker, A New Isolationism: Threat or Promise? (1972). 7 See the German-Soviet Non-Aggression Pact, signed on 23 August 1939 in Moscow between Ribbentrop and Molotov, the Secret Additional Protocol as well as cables No. 360 of 15 September 1939, No. 395 of 19 September 1939; No. 417 of 22 September 1939 and German-Soviet Confidential Protocol, signed on 18 September 1939 in Moscow between Ribbentrop and Molotov and its Secret Supplementary Protocol, signed on 28 September 1939 concerning the partition of Poland. 8 On 13 May 1940, in his maiden speech to the British Parliament, Prime Minister Winston Churchill steeled the nation to fight the Nazi Government with these words: ‘I say to the House as I said to ministers who have joined this Government, I have nothing to offer but blood, toil, tears, and sweat. We have before us an ordeal of the most grievous kind. We have before us many, many months of struggle and suffering. You ask, what is our policy? I say it is to wage war by land, sea, and air. War with all our might and with all the strength God has given us, and to wage war against a monstrous tyranny never surpassed in the dark and lamentable catalogue of human crime. That is our policy. You ask, what is our aim? I can answer in one word. It is victory. Victory at all costs - Victory in spite of all terrors - Victory, however long and hard the road may be, for without victory there is no survival.’ See also D. Cannadine (ed.), Blood, Toil, Tears and Sweat: The Speeches of Winston Churchill (1989). 9 See M. Small and J. D. Singer, Resort to Arms: International and Civil War: 1816−1980 (1982).

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LYAL S. SUNGA everyone’s moral concern regardless of the potential victim’s race or nationality, but also because severe violations tend to spiral out of control, threatening lives and property in other countries as well. Even before the Allied Powers secured victory, they understood that it would not be enough to win the war militarily, but that Nazi and Fascist totalitarian ideology had to be de-legitimized. Despite the fact that the Nuremberg and Tokyo Trials are often criticized, quite justifiably, for being ‘victors’ justice’, they affirmed the principle of individual criminal responsibility under international law for massive crimes and shattered the doctrine of absolute sovereign immunity.10 The UN General Assembly’s adoption of the Nuremberg Principles was intended to affirm the principle of individual criminal responsibility for crimes against peace, war crimes and crimes against humanity.11 The General Assembly accordingly tasked the International Law Commission to elaborate an international criminal code and court.12 The crime of genocide was added to the rubric of international criminal law with the Assembly’s adoption of the Genocide Convention on 9 December 1948, which has been ratified by over 130 States.13 In 1949, the international community developed the four Geneva Conventions14 to update the rules of international humanitarian law and for the first time to make 10

See A. C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials (1987); R. Clark and I. A. Lediakh, ‘The Influence of the Nuremberg Trial on the Development of International Law’, in G. Ginsburgs and V.N. Kudriavtsev (eds.), The Nuremberg Trial and International Law (1990) 249−283; B. B. Ferencz, ‘International Criminal Courts: the Legacy of Nuremberg’ 10 Pace International Law Review (1998) p. 203; G. Finch, ‘The Nuremberg Trial and International Law’ 41 American Journal of International Law (1947) pp. 20−37; D. W. Layton, ‘Forty Years after the Nuremberg and Tokyo Tribunals: The Impact of the War Crimes Trials on International and National Law’, 80 American Society of International Law Proceedings (1986) p. 56; E. J. O'Brien, ‘The Nuremberg Principles, Command Responsibility, and the Defense of Captain Rockwood’, 149 Military Law Review (1995) p. 275; W. O’Brien, ‘The Nuremberg Precedent and the Gulf War’, 31:3 Virginia Journal of International Law (1991) pp. 391−401; S. Pomorski, ‘Conspiracy and Criminal Organization’, in G. Ginsburgs and V.N. Kudriavtsev (eds.), The Nuremberg Trial and International Law (1990) pp. 213−248; F.B. Schick, ‘The Nuremberg Trial and the International Law of the Future’, 41 American Journal of International Law (1947), pp. 770−794; L. S. Sunga, ‘Full Respect for the Rights of Suspect, Accused and Convict: From Nuremberg and Tokyo to the ICC’, in M. Henzelin et. al. (eds.), Le droit pénal à l'épreuve de l'internationalisation (2002) pp. 217−239; T. Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (1993); and Q. Wright, ‘The Law of the Nuremberg Trial’, 41 American Journal of International Law (1947) pp. 38−72. 11 General Assembly resolution 95(1), adopted on 11 December 1946 on Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal. 12 The UN General Assembly requested the International Law Commission in 1947 to elaborate the Nuremberg Principles and to prepare a draft international criminal code to ensure that the lessons provided by the Judgements of Nuremberg and Tokyo would not be forgotten. See General Assembly resolution 177 (II) of 21 November 1947. 13 Convention on the Prevention and Punishment of the Crime of Genocide, adopted unanimously 9 December 1948, entered into force 12 January 1951; 78 UNTS 277. 14 Geneva Conventions, adopted 12 August 1949, entered into force 21 October 1950.

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INTERNATIONAL CRIMINAL LAW: PROTECTION OF MINORITY RIGHTS certain ‘grave breaches’ of the Conventions crimes under international law for which individuals could be prosecuted and punished.15 All these initiatives seemed to signal the international community’s determination and resolve to develop coherent deterrence of the major crimes through international law. However, little further advance was to be achieved in the field of international criminal law until the end of the Cold War opened fresh opportunities for international political and legal cooperation through the United Nations. In other words, the onset of the Cold War had a chilling effect on international cooperation at all levels and this effectively froze the development of international criminal law for almost half a century.16 In contrast, norms and implementation in the field of international human rights managed to grow and develop in fits and starts since 1945, mainly because governments found the UN Commission on Human Rights provided a valuable forum in which to attack the human rights practices of countries they did not like.17 However, while human rights norms and mechanisms began to develop throughout the Cold War, minority rights protection remained on the sidelines of international human rights law. In the immediate aftermath of the Second World War, particularly when Hitler’s abuse of the minority rights treaty system was fresh in the minds of policy makers, States remained wary of developing human rights in terms of minority rights guarantees. At the same time, American liberal political ideology found expression in the Universal Declaration of Human Rights,18 elaborated by the UN Commission on Human Rights under the guidance of Chairperson Ms. Eleanor Roosevelt,19 and in the International Covenant on Civil and Political Rights20 and the International Covenant on Economic, Social and Cultural Rights.21 Thus, in the early days of the United Nations, minority rights protection through domestic mechanisms 15

The grave breaches provisions of the four Geneva Conventions, 1949, are found in Articles 50 of Convention I, 51 of Convention II, 130 of Convention III, and 147 of Convention IV. 16 See generally L. S. Sunga, The Emerging System of International Criminal Law: Developments in Codification and Implementation (1997). 17 See generally M. Lempinen, Challenges Facing the System of Special Procedures of the United Nations Commission on Human Rights (2001); M. van der Stoel, ‘Interview with Max van der Stoel, Special Rapporteur of the UN Commission on Human Rights on Human Rights in Iraq’ 10 Netherlands Quarterly of Human Rights (1992) pp. 277−302; L. S. Sunga, ‘The Special Procedures of the United Nations Commission on Human Rights: Should They Be Scrapped?’, in G. Alfredsson et al. (ed.), International Human Rights Monitoring Mechanisms (2001) pp. 231−275; and H. Tolley, The UN Commission on Human Rights (1987). 18 Universal Declaration of Human Rights, adopted by UN General Assembly resolution 217A (III) of 10 December 1948. 19 See G. Alfredsson and A. Eide (eds.), The Universal Declaration of Human Rights: A Common Standard of Achievement (1999) p. 782. 20 International Covenant on Civil and Political Rights, adopted 16 December 1966; entered into force 23 March 1976; U.N.T.S. No. 14668, vol 999 (1976) at 171. 21 International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966; entered into force 3 January 1976; U.N.T.S. No. 14531, vol. 993 (1976) at 3.

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LYAL S. SUNGA was effectively side-stepped with the elevation of individualistic human rights guarantees to the international level. If universal human rights standards could prove effective for everyone, who would need special ‘minority rights guarantees’? The international community’s emphasis on individualistic human rights guarantees at the expense of group rights is reflected even in the ambiguity phrasing of Article 27 of the International Covenant on Civil and Political Rights which reads: ‘In those States in which ethnic, religious or linguistic minorities exist persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’. Instead of a positive right on the part of minorities to assert their own cultural, religious or linguistic distinctiveness in association with other members of the group, ‘persons belonging’ in other words, individual minority group members shall not be denied the right to enjoy their own culture etc. Article 27 also fails to call for special measures, i.e. programmes of preferential treatment to help address the problem of entrenched patterns of de facto inequality and to protect the rights of the minority as a group, and it conceives of cultural, religious and language rights almost purely in terms of individual rights.22 Fortunately, Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination23 provides that special measures do not count as forms of racial discrimination and the Convention refers both to groups and individuals.24 More recently, States have shown greater willingness to revisit the question of minority group rights and in 1992 Yugoslavia introduced a draft which the UN General Assembly adopted as the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.25 In preambular paragraphs (which in any case are only hortatory), the Declaration underlines the contribution of minority rights ‘to the political and social stability of States in which they live’ and the promotion and protection of minority rights ‘to the strengthening of friendship and cooperation among peoples and States’. The text of the Declaration deliberately avoids references to ‘peoples’ or the principle of ‘self-determination’ and follows the highly individualistic tenor of Article 27 of the ICCPR. Nonetheless, the 22

For the interpretation of the Human Rights Committee on Article 27 of the ICCPR, see General Comment 18(37); HRI/GEN/1 of 4 September 1992. 23 Adopted by General Assembly resolution 2106 (XX) of 21 December 1965, entered into force, 4 January 1969. 24 ‘special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved’. 25 United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the General Assembly in resolution 47/135 of 18 December 1992.

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INTERNATIONAL CRIMINAL LAW: PROTECTION OF MINORITY RIGHTS Declaration does provide in Article 1 that: ‘States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity’ and it obliges States to adopt appropriate legislative and other means to that effect. In addition to reiterating non-discrimination guarantees, the Declaration in Article 3 underlines the right of persons to exercise minority rights ‘individually as well as in community with other members of their group’. More concretely, Article 4 of the Declaration urges States to take measures ‘to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards’ including to preserve the opportunity to learn one’s mother tongue, history, traditions, language and culture and to participate fully in the economic development of their country. Such measures are subject, of course, to the Article 8(4) proviso that: ‘Nothing in the present Declaration may be construed as permitting any activity contrary to the purposes and principles of the United Nations, including sovereign equality, territorial integrity and political independence of States’. One must add of course that, as a resolution of the UN General Assembly, the Declaration is not legally binding in any way, although it remains a valuable register of the current sentiments of States on this important issue. Significantly, the Declaration was followed up with the establishment in 1995 of the Working Group on Minorities under the Sub-Commission on Promotion and Protection of Human Rights (known formerly as the Sub-Commission on Prevention of Discrimination and Protection of Minorities), consisting of five members of the Sub-Commission. The Working Group meets for one week annually in May in Geneva to consider ways in which to promote and protect the minority rights enunciated in the Declaration.26 Despite the evident lack of consensus on most core issues, the World Conference on Racism, Racial Discrimination, Xenophobia and Other Forms of Related Intolerance held in Durban, South Africa, in August − September 2001, did manage to set up a Working Group of People of African Descent to explore constructive solutions with regard to persistent discrimination against African origin minorities around the globe. As well, there have been some important initiatives in the area of the rights of indigenous peoples, namely, the establishment of the Working Group on Indigenous Populations under the UN Sub-Commission on the Promotion and Protection of Human Rights which has been working on a draft declaration on the rights of indigenous peoples, as well as the establishment of the Permanent Forum on Indigenous Issues.27 26

See further, Final text of the Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, by Asbjørn Eide, Chairperson of the Working Group on Minorities of the Sub-Commission, on the Promotion and Protection of Human Rights; E/CN.4/Sub.2/AC.5/2001/2 of 2 April 2001. 27 UN Draft Declaration on the Rights of Indigenous Peoples; UN Doc E/CN.4/Sub.2/1994/2/Add.1 of 20 April 1994.

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LYAL S. SUNGA To further round out the picture, one must mention that existing human rights implementation mechanisms at the global and regional levels accommodate minority claims in one way or other. Nothing prevents minority group members to send communications to the United Nations alleging a violation of their human rights. Once received by the UN, such communications are passed to the Working Group of Communications of the UN Sub-commission on Promotion and Protection of Human Rights for examination under the confidential ECOSOC resolution 1503 procedure, ‘with a view to determining whether to refer to the Commission on Human Rights particular situations which appear to reveal a consistent pattern of gross and reliably attested violations of human rights requiring consideration by the Commission’. Such situations can then be referred to the Commission on Human Rights for consideration as to whether they should become the subject of public investigation, study and reporting procedures under ECOSOC resolution 1235. In this connection, one must mention also that special rapporteurs and independent experts of the Commission on Human Rights can also highlight minority rights issues as they see fit. As for conventional human rights mechanisms, in addition to the Human Rights Committee consideration of individual complaints under the Optional Protocol as regards an alleged breach of Article 27 of the International Covenant on Civil and Political Rights, minority rights issues have come before other human rights treaty bodies, namely: the Committee on Economic, Social and Cultural Rights; and the Committee on the Rights of the Child (which do not have individual complaints faculties); the Committee on the Elimination of Racial Discrimination; the Committee on the Elimination of Discrimination against Women; and the Committee against Torture. In short, minority rights issues have arisen frequently before each of these bodies in the context of State reporting and through the consideration of individual complaints where this faculty exists. At the regional level, one must mention the European Convention on Human Rights,28 the Inter-American Convention on Human Rights29 and the African Convention on Human and Peoples’ Rights, as legal grounds for possible minority rights claims in one form or another, although it must be noted that none of these instruments actually refer explicitly to ‘minorities’ or ‘minority rights’.30 More recently however, the Council of Europe’s Committee of Ministers adopted in 1994 the Framework Convention for the Protection of National Minorities, which entered into force in 1998. The Framework Convention represents perhaps the most comprehensive legally binding multilateral treaty ever concluded on minority rights 28

European Convention on Human Rights, adopted on 4 November 1950 in Rome, entered into force 3 September 1953. 29 The American Convention on Human Rights, signed on 22 November 1969, entered into force on 18 July 1978, OAS Treaty Series No. 36 at 1. 30 African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 October 1986; OAU Doc. CAB/LEG/67/3 Rev. 5; 21 ILM 58 (1982). See also the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court of Human Rights on Human and Peoples’ Rights, adopted on 10 June 1998; OAU Doc. CAB/LEG/66/5, not yet entered into force.

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INTERNATIONAL CRIMINAL LAW: PROTECTION OF MINORITY RIGHTS and signals that States seem to be more willing to return to minority rights questions.31 Taking a bird’s eye view of the development of international minority rights guarantees since 1945 one sees that, in the aftermath of World War II when Hitler’s use of minority rights guarantees to legitimize gross transgressions of international law and State sovereignty were fresh in the public mind, Governments chose to elaborate human rights norms almost exclusively in individualistic terms. The expansion in the size of the international community to accommodate African and Asian States that had liberated themselves from the yoke of colonial domination by the late 1950’s and 1960’s consolidated governmental wariness over minority rights guarantees. International boundaries that had been arbitrarily drawn by the former colonial Powers remained in force according to the uti possidetis principle and most of the newly independent States suddenly had to cope with challenges from minority groups which found that authoritarian colonial administrations had been replaced by authoritarian Governments.32 The political climate of the Cold War in which each superpower sought to undermine the influence of the other in countries around the globe through proxy wars and covert aid to dissidents, who often comprised ethnically, racially or religiously distinct groups fighting for self-determination, further discouraged States from developing strong and effective minority rights guarantees at the international level. All these factors explain why minority rights guarantees were virtually dropped from the international agenda in the immediate post-World War II political climate and were not picked up again for decades. Recently however, the international community has had to deal more explicitly with minority rights protection and promotion, and the post Cold War climate has made it possible to establish international criminal law enforcement mechanisms that serve this purpose. 3. POST-COLD WAR RESURGENCE OF MINORITY RIGHTS VIOLATIONS AND THE RENAISSANCE OF INTERNATIONAL CRIMINAL LAW THROUGH THE ICTY AND ICTR The efforts of the modern constitutional State to downplay race, ethnicity, culture, language and religion have not been completely successful, perhaps because classic liberal prescriptions of individualism and formal legal civil liberties against the 31 Framework Convention for the Protection for National Minorities, adopted 10 November 1994, opened for signature 1 February 1995, entered into force 1 February 1998; ETS 157; 34 ILM 351 (1995). 32 Uti possidetis is Latin for ‘as you now possess’. This principle was affirmed in a resolution AGH/Res. 16 (I) adopted in Cairo in July 1964 at the first summit conference following the establishment of the Organization of African Unity, in which all member States ‘solemnly . . . pledge themselves to respect the frontiers existing on their achievement of national independence’. See also Case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), 1986 ICJ Reports, Judgment of the International Court of Justice of 22 December 1986, paras. 20-26 et. seq.

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LYAL S. SUNGA power of the State have often left minority groups feeling alienated and disenfranchised. The situation is far worse in countries ruled by illiberal or authoritarian regimes and therefore we are not likely to see ‘the end of history and the last man’33 anytime soon, but rather continued ethnic and denominational strife wherever minority rights are systematically abused, although an all-out ‘clash of civilizations’34 seems a bit far-fetched, even in our times of terrorist troubles. One can recall that Yugoslavia was once considered by many to have been an exemplary multinational State, that ethnically distinct former Soviet Socialist Republics have defected en masse from the bosom of Mother Russia, while violence rages on in Azerbaijan (Nagorno-Karabakh), Chechnya and Dagestan. Ethnic conflict continues to loom large in Rwanda and Burundi, Afghanistan, Burma and Congo (Brazzaville), the Democratic Republic of Congo, Abkhazia/Georgia, Ossetia, in many parts of India and Pakistan, in Aceh and Kalimantan and Papua New Guinea, Somalia, Sudan and Turkey, to name just a few places. Given the weakness of international minority rights guarantees and the failure of some States to protect minorities against severe violations, the international community has had to turn to international criminal law enforcement as a way of suppressing violations that amount to crimes under international law. The systematic and widespread violations perpetrated in the territory of the former Yugoslavia impelled the UN Security Council to establish the International Criminal Tribunal for the Former Yugoslavia in 199335 to address genocide, war crimes and crimes against humanity which were perpetrated mainly along ethnic, religious and cultural lines. In 1994, an even worse catastrophe in Rwanda - another story of ethnocultural enmity and terror – motivated the Security Council to establish the International Criminal Tribunal for Rwanda. 36 It is worth recalling that Tito had suppressed extreme ethnic nationalism consistently throughout Yugoslavia during his rule from 1946 until he died in 1980. Shortly after Tito’s death, individual states within Yugoslavia intensified their quest for greater autonomy from the central Government. Slovenia first opted to secede from Yugoslavia following a December 1990 referendum on the issue and declared its independence on 8 May 1991 providing other Yugoslavian states with a bold example that secession was indeed possible. Slovenia’s swift secession stimulated dormant minority rights claims for greater territorial and political autonomy and led quickly to ethnic and religious violence to avenge the harm, suffering and distress from wounds inflicted in past times. The Serbs of Croatia declared their independence from what was left of the Federation of Yugoslavia on 16 March 1991 and Bosnia-Herzegovina, after 63 per cent voted for the emergence of an 33

See F. Fukuyama, The End of History and the Last Man (1992). S. P. Huntington, The Clash of Civilizations and the Remaking of World Order (1996). 35 See Report of the Secretary-General pursuant to Paragraph 2 of Security Council resolution 808 (1993), including the Statute of the Tribunal; UN Doc. S/25704 of 3 May 1993 & Add.1 of 17 May 1993. 36 See Security Council resolution 955, adopted with 13 votes for, China abstaining, and Rwanda against, on 8 November 1994. 34

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INTERNATIONAL CRIMINAL LAW: PROTECTION OF MINORITY RIGHTS independent Republic, declared independence in April 1992. This event led Serb nationalist militia, including some soldiers from the Yugoslav National Army to invade parts of Bosnia-Herzegovina while the Serb Republic proclaimed its independence under Serbian Democratic Party leader Radovan Karadzic, headquartered in Pale.37 By this time, Serbian leaders were carrying out a policy of genocide dubbed ‘ethnic cleansing’ to clear Bosnian Muslims out of Serb occupied territories. When Yugoslavia dissolved in 1992, a number of the Governments of the newly emergent States were either unable or unwilling to prosecute the perpetrators of serious violations of international human rights and humanitarian law. In some cases, the judiciary was either intimidated from prosecuting alleged offenders because the Government responsible remained in power, or it lacked the necessary independence from the Executive to prosecute alleged offenders and considered them ‘war heroes’ rather than criminals. People were getting away with murder. In response to a stream of alarming media reports and NGO alerts, the UN Commission on Human Rights held its first ever special session and appointed a special rapporteur ‘to investigate first hand the human rights situation in the territory of the former Yugoslavia, in particular within Bosnia and Herzegovina’.38 In his first report,39 the Special Rapporteur documented a shocking range of minority rights violations and called for the prosecution of individual perpetrators to halt the ongoing violence and to deter future crimes from being committed.40 He also called for the establishment of a commission to assess and further investigate specific cases in which prosecution may be warranted and to include data already collected by various UN entities, other intergovernmental organizations and NGOs.41 This eventually led to a number of Governments, international organizations and NGOs calling for international prosecutions to be conducted42 and in response, on 6 37

In July 1996, Karadzic was indicted by the International Criminal Tribunal for the Former Yugoslavia. 38 See Report on the situation of human rights in the territory of the former Yugoslavia submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 14 of Commission resolution 1992/S-1/1 of 14 August 1992, E/CN.4/1992/S-1/9, 28 August 1992. 39 Ibid., Chapter I. 40 Ibid., at para. 69. 41 Ibid., at para. 70. 42 See e.g. E/CN.4/1992/S-1/10 of 27 Oct. 1992 at para 18 as well as Annex II (Statement by Dr. Clyde Snow). See also Report of the Special Rapporteur (transmitted by the SecretaryGeneral to the Security Council and General Assembly) A/47/666; S/24809 of 17 November 1992, para. 140, where Mr. Mazowiecki stated: ‘There is growing evidence that war crimes have been committed. Further investigation is needed to determine the extent of such acts and the identity of those responsible, with a view to their prosecution by an international tribunal, if appropriate’. See further the later reports of the Special Rapporteur for more details on the human rights situation in the former Yugoslavia: E/CN.4/1993/50 of 10 Feb. 1993; E/CN.4/1994/3 of 5 May 1993; E/CN.4/1994/4 of 19 May 1993; E/CN.4/1994/6 of 26 August 1993; E/CN.4/1994/8 of 6 September 1993; E/CN.4/1994/47 of 17 November 1993; E/CN.4/

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LYAL S. SUNGA October 1992, the Security Council adopted resolution 78043 establishing a Commission of Experts ‘to examine and analyze the information submitted pursuant to resolution 771 (1992) and the present resolution, together with such further information as the Commission of Experts may obtain through its own investigation or efforts, of other persons or bodies pursuant to resolution 771 (1992), with a view to providing the Secretary-General with its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia’.

Finally, on 25 May 1993, the Security Council adopted resolution 827 to establish the ICTY ‘for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace’. As of 31 December 2002, 42 accused were in custody at the ICTY Detention Unit, 11 had been provisionally released, 23 arrest warrants were outstanding, 19 had been transferred or released, there were 30 completed cases and 34 accused had been tried. Slobodan Milosevic and a number of other high level leaders and commanders were in the process of being tried.44 In the case of Rwanda, the international community had been given fair warning of the impending disaster in a report of 11 August 1993 in which the Special Rapporteur of the UN Commission on Human Rights on extrajudicial, summary or arbitrary executions45 drew attention to continuing serious human rights violations in Rwanda and flagged that these violations might constitute ‘genocide’.46 At this juncture, it is important to remember that the United Nations had already preoccupied itself with the deteriorating situation in the Great Lakes region of Africa and on 24 September 1993, UN Secretary-General Mr. Boutros-Boutros Ghali recommended that the Security Council should authorize an international military force to ensure compliance with the Arusha Accords, and in fact succeeded in establishing the ‘United Nations Assistance Mission in Rwanda’ (UNAMIR) with the adoption on 5 October 1993 of Security Council resolution 872. However, these peace manoeuvres by the international community were viewed by extremist Hutu 1994/110 of 21 February 1994; E/CN.4/1995/4 of 10 June 1994; E/CN.4/1995/10 of 4 August 1994; A/49/641-S/1994/1252 of 4 November 1994; E/CN.4/1995/54 of 13 December 1995; E/CN.4/1995/57 of 9 January 1995; E/CN.4/1996/3 of 21 April 1995; and E/CN.4/1996/6 of 5 July 1995. 43 See S/Res/780 (1992) adopted by the Security Council at its 3119th meeting, 6 October 1992. Reprinted in 31 International Legal Materials (1992) 1476. 44 See <www.un.org/icty/glance/index.htm> last accessed on 31 December 2002. 45 See the report of Mr. Bacre Waly Ndiaye on his mission to Rwanda from 8−17 April 1993, E/CN.4/1994/7/Add.1 of 11 August 1993. 46 Ibid., paras. 78−80.

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INTERNATIONAL CRIMINAL LAW: PROTECTION OF MINORITY RIGHTS militia in Rwanda as proof that the Government of Rwanda was merely a puppet of foreign Tutsi interests and in the final months of 1993, these extremist Hutu elements planned the full-scale elimination of the Tutsi people by training groups of 300 persons how to conduct systematic massacres of unarmed civilians. Despite the presence of UN peace-keepers in Kigali to enforce the Arusha Accords, the international community failed to intervene. Tragically Prime Minister Agathe Unwilingiyimana, as well as 10 Belgian peace-keeping soldiers assigned to protect her, were murdered by soldiers of the Rwandese Government on 7 April 1994 − a day after the downing of the aircraft that carried the Presidents of Rwanda and Burundi into Kigali, provoking the sudden withdrawal of Belgium’s UNAMIR contingent from Rwanda on 12 April for fear of further attacks which cleared the way for Hutu extremists to carry out the genocide unimpeded by foreign forces. The international community did little to prevent the genocide while it raged on from 6 April 1994 until the end of June 1994, at which time Paul Kagame’s Rwandan Patriotic Front stopped the massacres and took control of the country from the génocidaires. From 6 April until around the end of May 1994, the génocidaires succeeded in wiping out approximately one million mainly Tutsi men, women and children while the world watched. Again, the international community had failed to act decisively in time to prevent severe minority rights violations. Following the approach it took with regard to the violations being perpetrated in the former Yugoslavia, the Security Council adopted resolution 935 on 1 July 1994, establishing a Commission of Experts to provide the Secretary-General with ‘its conclusions on the evidence of grave violations of international humanitarian law committed in the territory of Rwanda, including the evidence of possible acts of genocide’. On 8 November 1994, the Security Council passed resolution 955 creating the International Criminal Tribunal for Rwanda, with its Statute as the resolution’s annex, reiterating its ‘grave concern at the reports indicating that genocide and other systematic, widespread and flagrant violations of international humanitarian law have been committed in Rwanda’ and determining that the situation constituted a continuing threat to international peace and security. As of 31 December 2002, the ICTR had competed 11 cases and 64 were in progress.47 However, as ad hoc international criminal tribunals created after the main part of the violations had already been committed, the ICTY and ICTR have probably exerted a rather limited deterrent effect. The vagaries of international diplomacy and relations and the continuation of Big Power politics made the whole process of the Security Council’s establishment of the ad hoc international criminal tribunals one of political whim and public caprice and this situation effectively annulled the possibility of such tribunals for Afghanistan, Burundi, the Democratic Republic of

47

See <www.ictr.org/> last accessed 31 December 2002.

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LYAL S. SUNGA Congo, Chechnya, Colombia or anywhere else, except for Sierra Leone, where a Special Court was established.48 Despite having encountered serious difficulties early on, the ICTY and ICTR must now be judged successes, and more importantly, they have pointed the way to move beyond mainly retrospective ‘too little too late’ solutions towards a standing permanent international criminal court to act prospectively wherever violations may be perpetrated. 4. THE ICC’S CONTRIBUTION TO MINORITY RIGHTS PROTECTION Before considering the ways in which the ICC can contribute to minority rights protection, it is valuable to review the basic principles underlying this newly established institution, its general relevance to minority rights protection, and then to consider more specific aspects of the ICC, in particular, the principle of complementarity, the crimes covered and certain procedural aspects. 4.1. The ICC’s Relevance to Minority Rights Protection As discussed above, ad hoc tribunals are typically limited in temporal and material competence and tend to be established after the major part of violations have already been committed. As such, they are essentially retrospective and their deterrent value is limited. Moreover, the process to establish ad hoc tribunals is inherently politically selective and to that extent, arbitrary, because it depends upon the will of a political body – the UN Security Council. Additionally, it is less efficient to establish diverse enforcement mechanisms for various countries each with different mandates and competences, which would duplicate functions, waste resources and hinder the coherent development of international criminal law jurisprudence. The ICC is intended to be a permanent, standing institution that symbolizes the international community’s seriousness and commitment to prevent, punish and deter crimes under international law and dispel the climate of impunity for major crimes. As such, it can act prospectively, provide a more universal presence and provide more credible deterrence than ad hoc criminal tribunals can. Article 1 of the Rome Statute captures the ICC’s essence by stating that the ICC: shall be permanent; shall exercise jurisdiction over persons (i.e. natural persons and not corporations or States); shall cover only the most serious crimes of international concern, in other words, that the ICC is not designed to intervene every time crimes of purely local concern are committed; and shall be complementary to national criminal jurisdictions. The principle of complementarity means that the ICC is not intended to replace the domestic obligation to prosecute crimes and it must be kept in mind that States 48

In Sierra Leone, broad amnesties have been doled out as the price of peace. Now that the killing and raping and maiming of innocent civilians has been carried out, soldiers and commanders seem quite happy to return home to fight another day – perhaps in another conflict for another set of amnesties.

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INTERNATIONAL CRIMINAL LAW: PROTECTION OF MINORITY RIGHTS have the right and the responsibility either to prosecute or extradite alleged offenders of certain crimes even where such crimes are not committed by a national of that country, where the crimes was not committed in the country’s territory, or even without any other connection to the prosecuting State. The ICC is designed to act only where a State will not or cannot prosecute individuals for the crimes under the Rome Statute. 4.2. ICC Protection of Minority Rights in Terms of Crimes Covered Broadly speaking, the Rome Statute covers only the most severe crimes under international law i.e. those categories of violations of a more systematic and widespread character: genocide, war crimes and crimes against humanity49 – all crimes that figure typically in severe minority rights abuse. Genocide Looking more closely at the specific crimes covered by the Rome Statute from the angle of minority rights protection, we see that the crime of genocide has been basically lifted from the Genocide Convention, 1948.50 Article 6 of the Rome Statute takes the definition of ‘genocide’ word for word from part of Article II of the Genocide Convention, 1948 as follows: ‘genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such: (a)

Killing members of the group;

(b)

Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 49 The crime of aggression, that is, the international use of force beyond that permitted by the UN Charter or general international law, had to be included as well because war creates the context in which serious violations are frequently committed. Delegations to the Rome Conference realized that for the ICC to address only the consequences of aggression without addressing aggression as a crime itself would produce a prosecutorial paradox in which only the symptoms of war would be outlawed and not the launching of aggressive war itself. However, aggression has never been defined for the purposes of international criminal prosecution, and so definitive inclusion of this crime into the Rome Statute must await completion of this important task by the Assembly of State Parties to the ICC. See further Proposals pursuant to resolution F of the Final Act for a Provision on Aggression, including the Definition and Elements of Crimes of Aggression and the Conditions under which the International Criminal Court shall Exercise Its Jurisdiction with regard to This Crime UN Doc. PCNICC/2002/2/Add.2 and PCNICC/2002/WGCA/L.1 and Add.1. 50 Convention on the Prevention and Punishment of the Crime of Genocide, adopted unanimously 9 December 1948, entered into force 12 January 1951; 78 UNTS 277.

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Imposing measures intended to prevent births within the group;

(e)

Forcibly transferring children of the group to another group.’

It is well known that during the drafting of the Genocide Convention, the main preoccupation was to prevent future extermination policies of the kind carried out by the Nazi German Government which tried to wipe out specific groups distinguishable from the majority population by relatively immutable and stable attributes. Accordingly, neither the Genocide Convention nor the Rome Statute provisions on genocide protect groups that may find themselves the target of Government crackdowns on political dissident movements, except to the extent that race, religion and ethnicity or other relatively immutable characteristics are involved.51 Crimes against Humanity The insertion of the new legal category of ‘crimes against humanity’ in the Nuremberg and Tokyo Charters alongside ‘crimes against peace’ and ‘war crimes’ was designed specifically to cover crimes committed by Germans against Germans, in other words, the violations of the Government of Germany of the rights of its own minority populations, ‘namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated’.52 The other two main avenues for the Allied prosecution of Axis crimes would not have been

51

See J. Kunz, ‘The United Nations Convention on Genocide’ 43 American Journal of International Law (1949) pp. 738−746; L. Leblanc, ‘The Intent to Destroy Groups in the Genocide Convention: Proposed U.S. Understanding’ 78 American Journal of International Law (1949) pp. 369−385; N. Robinson, The Genocide Convention: a Commentary 1960; and G. J. Andreopoulos, (ed.) Genocide: Conceptual and Historical Dimensions 1994. See further W. A. Schabas, Genocide in International Law (2000). 52 See M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law: Second Revised Edition (1999); W. J. Fenrick, ‘should Crimes Against Humanity Replace War Crimes?’ 37 Columbia Journal of Transnational Law (1999) p. 767; Ph. Hwang, ‘Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court’, 22 Fordham International Law Journal (1998) p. 457; G. Mettraux, ‘Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda’, 43 Harvard International Law Journal (2002) p. 237; D. Robinson, ‘Defining “Crimes Against Humanity” at the Rome Conference’, 93 American Journal of International Law (1999) p. 43; B. Van Schaack, ‘The Definition of Crimes Against Humanity: Resolving the Incoherence’, 37 Columbia Journal of Transnational Law (1999) p. 787; L. S. Sunga, ‘The Crimes within the Jurisdiction of the International Criminal Court (Part II, Articles 5−10)’, 6:4 European Journal of Crime, Criminal Law and Criminal Justice (1998) pp. 377−399.

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INTERNATIONAL CRIMINAL LAW: PROTECTION OF MINORITY RIGHTS sufficient to sweep in the horrendous persecution and mass killing perpetrated by the Nazi Government against sections of its own population. In the Rome Statute, crimes against humanity can be committed either during armed conflict, or in situations that qualify technically as peace-time. Article 7(1) lists the acts covered by the broad legal category of ‘crimes against humanity’, whereas Article 7(2) defines a number of key terms to guide the Court’s adjudication on any crime against humanity. The chapeau to Article 7(1) makes clear that the prohibited acts only qualify as ‘crimes against humanity’ ‘when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.53 The Rome Statute’s refinement of ‘crimes against humanity’ makes an important contribution to minority rights protection by removing any necessary connection between the legal category of ‘crimes against humanity’ and the existence of an armed conflict. This is of capital importance because many severe minority rights violations are perpetrated in situations where the intensity of the violence falls below that required to qualify them as ‘armed conflicts’. In effect, this represents an important lowering of the threshold for the applicability of ‘crimes against humanity’ and one hopes, an increasing level of deterrence for would-be perpetrators of minority rights violations. On the other hand, Article 7(1) does not bring isolated acts listed as ‘crimes against humanity’ within ICC jurisdiction, but only situations where the acts were ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’. At the Rome Conference, States were not prepared to go further and confer upon the ICC authority to seize jurisdiction over isolated acts of murder, extermination, enslavement, etc. because they did not envisage the ICC either to function as a sort of human rights court competent to take individual complaints on this basis, or as an enforcement mechanism empowered to replace competent domestic authorities. Finally, the kinds of acts listed under the umbrella of ‘crimes against humanity’ remain highly relevant to minority rights protection, in particular, the crime of ‘extermination’ can cover killings that might target a minority group, but which fall short of the definition of genocide. In fact, the formula for the Rome Statute’s 53

Article 7(1) provides that: ‘For the purposes of this Statute, “crimes against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’ and then lists the following specific acts: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; enforced disappearance of persons; the crime of apartheid; other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

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LYAL S. SUNGA definition of ‘crimes against humanity’ comes from Article 6(c) of the Nuremberg Charter, 1945, which listed ‘murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war, or persecutions on political, racial, or religious grounds’. Interestingly, Articles 5 and 3 of the Statutes of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, narrowed the definition of ‘crimes against humanity’ by altering the Nuremberg formula of ‘persecutions on political, racial or religious grounds’ to ‘persecutions on political, racial and religious grounds’. Fortunately, the Rome Statute reintroduces the broad coverage originally intended for ‘crimes against humanity’ and in so doing increases minority rights protection in respect of the acts listed. Another important contribution from the point of view of minority rights protection, comes in the form of Article 7(2)(h) of the Rome Statute which expands the scope of the crime of persecution beyond that expressed in the Nuremberg and Tokyo Charters and the narrower Yugoslavia and Rwanda Tribunal Statutes to cover: ‘Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.’

The reference in paragraph (h) to ‘any identifiable group or collectivity’ is considerably broader than terms in the Rome Statute employed for delimiting the scope of crimes. Moreover, paragraph (h) is non-exhaustive in that it refers to ‘other grounds that are universally recognized as impermissible under international law’. Yet another important development pertaining to minority rights protection is the introduction of ‘enforced disappearance of persons’ in Article 7(1)(I) of the Rome Statute. As we know, Governments have on many occasions resorted to the practice of enforced disappearances to rid the country of political opponents and to silence dissidents over such issues as greater autonomy for minority groups. The Rome Statute definition of ‘crimes against humanity’ also encompasses ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’. This expansion of the legal norms has to be particularly welcomed since international criminal law had for a long time paid scant attention to such horrendous crimes. It is important also that Article 7(1)(g) includes sexual slavery and enforced prostitution and forced pregnancy which have often been systematically perpetrated in territories under occupation, for example in many of the territories of the former Yugoslavia, by Japanese forces during World War II, during the genocide carried out in Rwanda in 1994, and in many other armed conflicts. Moreover, the formula ‘or any other form of sexual violence of comparable gravity’ allows the ICC to bring a flexible interpretation to these sorts of crimes rather than to have to take an overly narrow or technical approach. 272

INTERNATIONAL CRIMINAL LAW: PROTECTION OF MINORITY RIGHTS Finally in connection with ‘crimes against humanity’ one must mention also the crime of apartheid which Article 7(2)(j) of the Rome Statute defines as ‘an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime’. War Crimes The Rome Statute’s definition of ‘war crimes’ also contributes to minority rights protection because it establishes that war crimes can be committed either in international or non-international armed conflict situations. Prior to the Rome Statute, it had been unclear as to whether the kinds of acts that qualified as ‘war crimes’ in international armed conflict, could also be considered to import individual criminal responsibility in the context of non-international armed conflict. Certain Delegations to the Rome Conference, supported by a wide range of NGOs, insisted that because civil wars have become much more frequent relative to inter-State wars, the ICC had to be conferred competence over war crimes committed in noninternational armed conflict situations as well. This view ultimately prevailed and accordingly Article 8(2) of the Rome Statute distinguishes among four categories of ‘war crimes’. Concerning international armed conflict, Article 8(2) defines ‘war crimes’ as grave breaches of the Geneva Conventions of 1949 and secondly, ‘other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law’. As for non-international armed conflict, Article 8(2) defines ‘war crimes’ as serious violations of Article 3 common to the four Geneva Conventions and secondly, ‘other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law’. The ICC has to apply the Rome Statute’s provisions on war crimes subject to Article 8(1) which provides that the ‘Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a largescale commission of such crimes’, in other words, only in cases where there is a certain level of organization and the violations have been carried out in the context of a command structure (whether that of a State or otherwise), rather than with respect to isolated acts or those committed outside any responsible authority whatsoever. 4.3. Procedural Aspects of the ICC’s Protection of Minority Rights Minority groups can access the available ICC procedures in order to spur the response of the international community in any situation where the violations in question amount to crimes under international law coming within the ICC’s jurisdiction as described above. It is important to note that the ICC Prosecutor has an independent role in the sense that he or she has the authority to initiate investigations on his/her own motion, and gather information from any reliable source. Minority group members 273

LYAL S. SUNGA suffering serious violations can draw the attention of the ICC Prosecutor to the matter, who then has to determine whether the State having jurisdiction over the territory is both willing and able to prosecute the perpetrators. In other words, as mentioned briefly above, the ICC can seize jurisdiction over a situation only where the State or States with jurisdiction to prosecute remains or remain unwilling or unable to prosecute. In addition to the inability or unwillingness of the competent State to prosecute offenders for crimes under ICC jurisdiction, the ICC will not seize jurisdiction unless the preconditions to the exercise of jurisdiction have been satisfied, i.e. unless: 1) a State Party to the Rome Statute accepts the ICC’s jurisdiction;54 2) a State Party refers a situation to the ICC;55 3) the person accused of the crime is a national of a State Party;56 4) the UN Security Council acting under Chapter VII of the Charter of the United Nations refers the situation to the Prosecutor;57 or 5) the Prosecutor himself or herself has initiated an investigation proprio motu on the basis of information from ‘States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate’.58 It is important to bear in mind that the Prosecutor’s investigation is subject to the judicial oversight of the Pre-Trial Chamber, which has to determine whether ‘there is a reasonable basis to proceed’. At this stage in the ICC process, victims can make representations to the Pre-Trial Chamber, and equally, minority group members that have suffered violations that qualify as crimes within the ICC’s jurisdiction can make their cases known.59 In effect, the establishment of the ICC means that minority groups now enjoy the opening up of an entire new institutional framework to halt, suppress, prosecute and punish minority violations that constitute crimes under international law under the Rome Statute, as long as all ICC jurisdictional criteria are met.

54

Article 12(2)(a) of the Rome Statute. Article 13(a) of the Rome Statute. 56 Article 12(2)(b) of the Rome Statute 57 Article 13(b) of the Rome Statute. 58 Articles 13(c) and 15 of the Rome Statute. 59 In addition to the initiation of investigations by the Prosecutor ex proprio motu, a State Party may refer a situation to the Prosecutor requesting him or her to investigate (Article 14), the Security Council may invoke Chapter VII and refer a situation to the ICC pursuant to Article 13, or the Pre-Trial Chamber may review a decision of the Prosecutor not to proceed, in essence, reactivating an investigation. There are of course a number of checks and balances within the ICC, such as the fact that under the Rome Statute, the Security Council can defer an investigation into a situation for a period of 12 months, if it manages to adopt a resolution pursuant to Chapter VII of the UN Charter to this effect, and it can renew this deferral. Moreover, the jurisdiction of the ICC in a given case can be challenged by an accused, a State having jurisdiction over the case as well as a State whose jurisdiction is necessary under Article 12 of the Rome Statute to proceed. See Article 19 of the Rome Statute. 55

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INTERNATIONAL CRIMINAL LAW: PROTECTION OF MINORITY RIGHTS 5. CONCLUDING REMARKS It has only been since the end of the Cold War that States have returned to the question of the effective guarantee of the human rights of minority groups as such. As we have seen, the rapid emergence of international criminal law enforcement mechanisms has been motivated largely to address the particularly intense kinds of violations typically committed in ethnic, racial and religious conflict. Paradoxically, while the Rome Statute of the ICC nowhere refers to ‘minorities’ or ‘minority rights’, in effect, the ICC constitutes the international community’s foremost new weapon against severe minority rights abuse and against impunity, particularly as regards its more expansive definitions of ‘crimes against humanity’ and ‘war crimes’ and its new procedural avenues. Hopefully, the ICC will fulfill its potential to deter genocide, war crimes and crimes against humanity and thereby contribute to the effective protection of minority rights.

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AUTONOMY: THE PROBLEM OF IRREDENTISM AND CROSS-BORDER COOPERATION CROSS-BORDER COOPERATION AS AN INDICATOR FOR INSTITUTIONAL EVOLUTION OF AUTONOMY: THE CASE OF TRENTINO–SOUTH TYROL Francesco Palermo and Jens Woelk* 1. INTRODUCTION: POLITICAL AND ECONOMIC COOPERATION VS. HISTORICAL LEGACY? Borders are generally seen as something which divides. Especially in the context of the Nation-State, the primary historical function of borders is that of barriers.1 But borders also function as filters, as ‘discriminating mediators between two or more political and institutional or economic systems’, creating economic advantages and disadvantages. A third approach, the concept of the ‘open border’, stresses the function of contact (instead of separation) between two or more political and institutional systems or socio-economic subsystems, allowing synergies between border areas and transforming the border economy into a cross-border economy by means of cooperation.2 In the (peaceful and economically more and more integrated) European context after WW II, border areas (so far a mere ‘periphery of the Empire’) started to express new needs. It was more and more perceived that the increased integration between States and the consequent dilution of national sovereignty transformed these areas from mere peripheries of the Nation States they belonged to into ‘new centres in the periphery’,3 i.e. integrated and more efficient areas from the economic *

Chapters 1 and 2 by Francesco Palermo, chapters 3 and 4 by Jens Woelk; concluding remarks by both. 1 See recently L. Hutchman, Beyond Borders (Broken Jaw Press, Fredericton, 2000), H. French, Vanishing Borders: Protecting the Planet in the Age of Globalization (W.W. Norton, New York, 2000) and G. Mantovani, Exploring Borders: Understanding Culture and Psychology (Routledge, Philadelphia, 2000). 2 R. Ratti, Regioni di frontiera. Teoria dello sviluppo e saggi politico economici (CCM, Lugano 1991), pp. 57−67. 3 R. Toniatti, ‘La bozza di statuto della Regione europea’, in P. Pernthaler, S. Ortino (eds.), Europaregion Tirol/Euregio Tirolo. Rechtliche Voraussetzungen und Schranken der Institutionalisierung/Le basi giuridiche ed i limiti della sua istituzionalizzazione, Autonome Region Trentino-Südtirol/Regione Autonoma Trentino-Alto Adige, (Trento 1997), p. 23.

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FRANCESCO PALERMO AND JENS WOELK and cultural point of view, performing a sort of bridging role as contact areas between different systems.4 In addition, the need for a joint management of common problems between neighbouring areas belonging to different States became widely evident and increasingly important. This is particularly true for environmental issues, but it also goes for problems affecting the fields of economy (commerce, trade and tourism), transport and culture, to mention just a few. Only more recently have interregional cross-border cooperation activities been started also between border areas marked by the presence of ethnic, linguistic or cultural groups that are a minority in one state, but actually a majority across the border (e.g. between the German-Czech, the Italo-Slovenian, or the Austro-Italian border areas).5 Therefore, CBC (cross-border cooperation) has begun to draw political attention, especially because some cooperation projects have been perceived as a tool for the development of ethnically homogeneous regions in view of the creation of a federation of small and ethnocentric areas, rather than a Europe based on cultural diversity and integration.6 On the other hand, the overall tendency in governance is the search for (more) efficiency, which can be best achieved by more flexible and result-oriented cooperation between (already existing) entities. This does not only explain phenomena like cooperative federalism (and regionalism), but also supranational forms of cooperation, e.g. the European Community, which proves to be a guarantee for the States with respect to fears for their sovereignty. In this new and less ‘ideological’ context, the phenomenon of cross-border cooperation may be a useful indicator for the institutional evolution (‘ripeness’) of autonomy systems. The autonomy in South Tyrol is often seen as a model for conflict resolution7, but one must ask whether it really represents a ‘success story’, which can be 4 R. Ratti, supra note 2, p. 67; G. De Vergottini, Regioni di confine comuni: dalla cooperazione alla istituzionalizzazione, (1995) LXII, Rivista di studi politici internazionali 1 et seq. 5 For practical examples see Council of Europe (ed.), Examples of Good Practice of TransFrontiers Co-operation Concerning Members of Ethnic Groups on the Territory of Several States (1995 Strasbourg); also R. Strassoldo and G. Delli Zotti, Cooperation and Conflict in Border Areas (Angeli, Milano 1982). 6 See, for example, G. Delli Zotti and L. Bergnach, Etnie, confini, Europa (Angeli, Milano 1994) and B. Luverà, Oltre il Confine. Euregio e conflitto etnico: tra regionalismo europeo e nuovi nazionalismi in Trentino-Alto Adige (Il Mulino, Bologna 1996) and, recently, S. Wolff, Disputed Territories. The Transnational Dynamics of Ethnic Conflict Settlement (Berghahn Books, London, 2003). 7 For example A.E. Alcock, ‘south Tyrol’, in H. Miall (ed.), Minority Rights in Europe: the Scope for a Transnational Regime (The Royal Institute of International Affairs, London, 1994), pp. 46–55, M. Feiler, ‘south Tyrol – Model for the Resolution of Minority Conflicts?’, 28 Review of International Affairs (1997) 1053−1054, p. 35, M. Magliana, The Autonomous Province of Bolzano-Südtirol: A Model of Self-Governance? (European Academy Bozen/Bolzano, Bolzano, Quaderno/Arbeitsheft No. 20, 2000), esp. pp. 127 et seq.), and, critical, T. Kager, ‘south Tyrol: Mitigated but not Resolved’, 1:3 Online Journal of Peace and Conflict Resolution (1998) p. 1 et seq.

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CROSS-BORDER COOPERATION AS AN INDICATOR FOR INSTITUTIONAL EVOLUTION OF AUTONOMY: THE CASE OF TRENTINO-SOUTH TYROL replicated in other cases and contexts, perhaps also in the Balkans.8 As there are only a few other cases with such a long record of working autonomy, the practical experience of South Tyrol as a stable system of territorial autonomy could also provide valuable insights into the goals and means of CBC in post-conflict situations. This chapter explores the legal nature of cross-border cooperation from the perspective of international and EU law as well as through a comparison of the constitutional law of some federal and regional States in the European Union. In the second part it illustrates the history of cross-border cooperation across the AustroItalian border as a case-study, before drawing some general conclusions on the use of cross-border cooperation as a tool for conflict-resolution. 2. THE PHENOMENON OF CROSS-BORDER COOPERATION AND ITS LEGAL NATURE The concept of the border as a ‘barrier’ is increasingly perceived as anachronistic, hence the interest in overcoming it by means of cross-border cooperation. This phenomenon has only recently been thoroughly studied by legal scholars. In particular, while international lawyers have been exploring it from their own perspective for some years now, constitutional lawyers, focussing mainly on the issue of sovereignty, have only recently turned their attention to it. In fact, the deep changes affecting the role of the State require more attention to the phenomenon of and the opportunities provided by CBC. 2.1. A Changing Global Environment: Interrelation, Cooperation and Integration Since the end of the Cold War the claim to self-determination has increasingly been used as a justification for demanding independence or secession. Rapid secularisation, democratisation and urbanisation often have a strong impact on ethnic sentiments, which frequently serve as a substitute for religion. Democracy also tends to emphasize the importance of the nation.9 8

See for this question S. Böckler, ‘The South Tyrol: 75 years of Ethnic Conflict and Peaceful Coexistence’, in Serbian Academy of Sciences and Arts (eds.), Status of Minorities in the Federal Republic of Yugoslavia (Belgrade, 1996), vol. 19, pp. 597–606, S. Böckler and R. Grisenti, Lo Statuto di Autonomia del Trentino-Alto Adige: un modello di pacificazione etnica per l'area centrale danubiana? / Das Autonomiestatut für Trentino-Südtirol: ein Modell für die Befriedung ethnischer Konflikte im mittleren Donauraum? (Angeli, Milano/Berlin 1996) and S. Böckler, ’Das Autonomiestatut für Trentino-Südtirol – Ein Modell für die friedliche Regelung des Kosovokonflikts?’ in J. Marko (ed.), Gordischer Knoten Kosovo/a: Durchschlagen oder entwirren? Völkerrechtliche, rechtsvergleichende und politikwissenschaftliche Analysen zum jüngsten Balkankonflikt (Nomos, Baden – Baden 1999), pp. 87–104. 9 For a deeper analysis on the changing concept of democracy with regard to citizenship and multicultural society see M. Dunne and T. Bonazzi (eds.), Citizenship and Rights in

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FRANCESCO PALERMO AND JENS WOELK Despite the ongoing changes in international law, which seem to put an end to the concept of absolute State sovereignty as well as to the related principle of noninterference, there is great reluctance to accept the alteration of international borders, which are still seen as an important guarantee of stability. Since ethnic groups do not always concentrate in a compact settlement area, means other than secession or independence have to be found, in order to solve conflicts resulting from ethnic diversity within the State. On the other hand, the various processes of globalisation are weakening the nation State, which is increasingly unable to perform the functions of an all-purpose organisation. This is most evident in, but not limited to, the economic field.10 Furthermore, there is also growing and widespread dissatisfaction with the inefficiency and remoteness of the large-scale, bureaucratic State. The answer to these developments is sought in the form of a political organisation combining cooperation − and even integration − of States on a supranational level with a general trend towards greater decentralisation, i.e. the devolution of powers and responsibilities to sub-State entities.11 Apart from the question of its State-like character, the European Union, with its functional approach and the often quoted principle of subsidiarity provides a formidable example of this tendency towards the establishment of multilevel governance. Whereas genuine autonomy was sometimes seen as incompatible with Statesovereignty during the Cold War, it now not only represents an attractive alternative to secession, but it is also perfectly in line with a widespread pattern of general decentralisation and the creation of multilevel governance structures by integration. These developments leave more room for differentiation and activities on a regional and sub-State level,12 both within the State and across its borders, as is well demonstrated by the (lobbying) activities of various European regions in Brussels, their engagement in economic development projects in other countries and the formation of so-called Euroregions across State borders.13 In this perspective CBC activities constitute a flexible horizontal link, a necessary and important addition to the internal decentralisation of States. After the phase of immediate economic reconstruction that followed WW II (until the 1960s) and with the beginning of European integration, cross-border cooperation between territorial units significantly increased in Central (and especially Western) Europe, e.g. along Germany’s Western and Northern borders. In this whole area, immediately after the fall of the Berlin wall, interregional crossMulticultural Societies (Keele University Press, Keele 1995), W. Kymlicka, Multicultural Citizenship (OUP, Oxford 1995). 10 R. Ratti and A. Bramanti, Verso un’Europa delle Regioni. La cooperazione economica transfrontaliera come opportunità e sfida (Angeli, Milano, 1993). 11 See S. Ortino, The Nomos of the Earth (Nomos, Baden-Baden, 2002). 12 F. Marcelli (ed.), Regioni e ordinamento internazionale (Giuffrè, Milano, 1995). 13 V.E. Bocci, Il potere estero delle Regioni. Il caso dell’ufficio di collegamento della regione Toscana, (2000) Istituzioni del federalismo 63 et seq. and L. Badiello, Ruolo e funzionamento degli uffici regionali europei a Bruxelles, (2000) Istituzioni del federalismo 89 et seq.

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CROSS-BORDER COOPERATION AS AN INDICATOR FOR INSTITUTIONAL EVOLUTION OF AUTONOMY: THE CASE OF TRENTINO-SOUTH TYROL border cooperation developed on both parts of the former iron curtain, between German, Austrian and Italian entities on one side and Polish, Czech, and Slovenian entities on the other.14 Given the lack of public law instruments allowing the regions to perform cross-border functions, the available legal instruments for this kind of cooperation were mainly private law instruments (associations, foundations, companies, working groups, etc.). As cross-border organisms, the so-called Euroregions are the institutionalisation of spontaneous and informal CBC-activities and thus the highest link in the chain of CBC evolution. They first appeared in three large European regions, which are particularly sensitive to issues related to transportation and/or environment: Scandinavia (Nordic Council), the river Rhine basin (Regio Basilensis and Euregio) and the Alps (Arge-Alp, Alpe Adria).15 A Euro-region can be defined as ‘a formal structure established by municipalities or regions for the purpose of cross-border cooperation with the participation of economic and social partners’.16 These structures do not represent a new level of government, but a horizontal and flexible link of governance for persons, enterprises and public bodies on both sides of the border, offering practical and psychological advantages and respecting common interests.17 The institutional and administrative structures of cross-border entities display great variation, which has direct implications on their capability to effectively influence policies related to the territory, the environment, transport or economic cooperation. The following factors influence the level of integration most:18 • internal factors: geographical and demographic dimensions, historical aspects, the relationship with the central State, administrative capacities and the (different) legal framework; • external factors: a real prospect of social and economic integration, i.e. whether the participating entities are similar or complementary.

14

See R. Hilf, I progetti tedeschi di regioni transfrontaliere, 4 Limes (1993) p. 79. P. Bajtay (ed.), Regional cooperation and the European integration process: Nordic and Central European experiences (Hungarian Institute of International Affairs, Budapest, 1996). 16 Definition by J. Gabbe, European Models of Inter-Regional and Cross-Border Cooperation in the European Union (LACE, Gronau, 1995), p. 3. 17 W. Ferrara, Regioni frontaliere e politiche europee di cooperazione (I.S.I.G., Gorizia, 1998), W. Ferrara and P. Pasi, Come funzionano le euroregioni. Esplorazione in sette casi (I.S.I.G., Gorizia, 2000), p. 10. 18 Ferrara and Pasi, supra note 17, p. 11. In their comparative study, the authors present seven case studies on different forms of Euroregions: The Dutch-German Euroregion, the Regio Basilensis (Switzerland, upper-Rhine area), Pamina (a very small euroregion in the framework of cooperation on the river Rhine), the Euroregion Neisse (on the Eastern borders of the EU, between Germany, Poland and the Czech Republic), the Euroregion Carpathia (outside the EU, between Hungary, Romania, Slovakia, Ukraine and Poland), the Regio Insubrica (Italy and Switzerland) and the Euroregion in the Trentino-South Tyrol-Tyrol area. 15

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FRANCESCO PALERMO AND JENS WOELK These variable factors explain the wide range of existing CBC activities both in their ‘soft’ and institutional forms.19 Consequently general considerations should not affect the assessment of individual CBC experiences: instead, a thorough case to case analysis is required. 2.2. The Legal Bases in International and European Community Law Over the past 25 years cross-border activities between sub-national territorial entities have enormously increased, especially under the legal and political umbrella of the Council of Europe.20 In 1980 the member States of the Council of Europe agreed upon an Outline Convention on cross-border cooperation between territorial communities or authorities,21 which aims ‘to facilitate and foster cross-border co-operation between territorial communities or authorities . . . and to promote the conclusion of any agreements and arrangements that may prove necessary for this purpose with due regard to the different constitutional provisions of each Party’ (Article 1).22 The Outline Convention established an international legal base for already existing activities and further developments of this new kind of cooperation. Nevertheless, as it typically happens in international law, the Convention only sets out a programmatic context and a minimum common standard for all the contracting

19 See also U. Beyerlin, Dezentrale grenzüberschreitende Zusammenarbeit als transnationales Rechtsphänomen, in: (1989) 27 Archiv des Völkerrechts, pp. 286 et seq.; U. Beyerlin, Rechtsprobleme der lokalen grenzüberschreitenden Zusammenarbeit (Springer, Berlin 1988); W. Lang, Die normative Qualität grenzüberschreitender Regionen – Zum Begriff der ‘soft institution’, 27 Archiv des Völkerrechts (1989), pp. 253 et seq. 20 In 1966 the Recommendation 470 was adopted by the Consultative Assembly (now Parliamentary Assembly), followed in 1974 by Resolution 8, regarding the cooperation at municipal level in border areas, adopted by the Committee of Ministers. See Council of Europe, Documents and Agreements concerning Transfrontier-Cooperation in Europe (Council of Europe, Strasbourg 1997), and C. Ricq, Handbook on Transfrontier Co-operation of Local and Regional Authorities in Europe (Council of Europe, Strasbourg 1996). 21 Signed in Madrid on 21 May 1980 (after five years of working on the drafts) and entered into force (after four ratifications) on 22 December 1981; see M. Frigo, La cooperazione regionale nella convenzione del Consiglio d‘Europa del 1980 e i limiti della sua attuazione in Italia, in: A. Mattioni and G. Sacerdoti (eds.), Regioni, costituzione e rapporti internazionali. Relazioni con la Comunità europea e cooperazione transfrontaliera (Angeli, Milano 1995), pp. 71 et seq., and Documents in P. Pernthaler/S. Ortino (eds.), Europaregion Tirol/Euregio Tirolo. Rechtliche Voraussetzungen und Schranken der Institutionalisierung/Le basi giuridiche ed i limiti della sua istituzionalizzazione, Autonome Region TrentinoSüdtirol/Regione Autonoma Trentino-Alto Adige, (Trento 1997), p. 193 et seq., and , 10 March 2003. 22 About the genesis and aims of the Madrid outline convention see E. Decaux, La Convention-cadre sur la coopération transfrontalière des collectivités ou des autorités locales, in Revue Générale de Droit International Public, LXXXVIII, 1984, pp. 557.

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CROSS-BORDER COOPERATION AS AN INDICATOR FOR INSTITUTIONAL EVOLUTION OF AUTONOMY: THE CASE OF TRENTINO-SOUTH TYROL parties.23 In the case of the Convention, the minimum standard is the opportunity for the local communities or authorities to cooperate ‘in particular by agreements in the administrative field’ (point 3 of the preamble), having regard, in any case, to the different constitutional provisions of each State (Articles 1, 2 al. 1, 3 al. 1, 4). Therefore, the most relevant consequence of the Convention is that it brings CBC into the domestic legal system of the contracting States thereby transforming it from an activity at best ‘tolerated’ into an explicitly mentioned ‘legal’ activity, which the contracting States have agreed to promote. On 20 October 1995 a very important additional protocol (no. 2) to the Madrid Outline Convention was opened for signature.24 This Protocol aims at strengthening the Outline Convention by clarifying the legal nature of CBC agreements and Euroregions. It expressly recognises the right of territorial entities to conclude crossborder cooperation agreements, under certain conditions, the validity in domestic law of the acts and decisions made in the framework of a cross-border cooperation agreement and the legal corporate capacity (‘legal personality’) of any cooperation body established under such an agreement (Article 5). Thus, the additional Protocol opens up new opportunities for internationally regulated CBC, yet its importance should not be overestimated, as it requires ratification by the Statesconcerned as well as additional implementation measures.25 Thus, the foundations for CBC provided by international law are alone an insufficient legal base for concrete measures to be taken in terms of interregional cross-border activities. This is also true for EC-law, at least from a formal point of view. EC-law cannot directly intervene in this field, because the internal organisation and distribution of powers between the various levels of governance is still vested in the Member States. Nevertheless, the regional policy of the EC, envisaging financial incentives and support for cross-border cooperation activities, plays a crucial role in – indirectly − stimulating the Member States to improve the competence of their regions to connect themselves with regions belonging to other States.26 The most relevant instrument is the INTERREG initiative, which has been providing funds for 23

R. Toniatti, ‘How Soft is and Ought to be the Law of Interregional Transborder Cooperation?’, in R. Kicker, J. Marko, M. Steiner (eds.), Changing Borders: Legal and Economic Aspects of European Enlargement (Peter Lang, Frankfurt A.M. et al., 1998), p. 43. 24 Open for signature by the States which have signed the Outline Convention, in Strasbourg, on 9 November 1995 and entered into force on 1 December 1998; see Documents in Pernthaler and Ortino (eds.), supra note 21, p. 269 et seq. and , 10 March 2003. 25 By the end of 1999, the Protocol had been signed and ratified by seven countries, seven other countries had only signed. Italy signed the Protocol on 5 December 2000 but has not ratified it yet. Austria signed it on 28 February 2001. 26 European Commission, A Practical Guide to Cross-Border Cooperation (Luxembourg, 1992); European Parliament, Cross-Border and Interregional Cooperation in the European Union (Regional Policy Series, Luxembourg, 1996).

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FRANCESCO PALERMO AND JENS WOELK common initiatives between border regions within and outside the EU since 1990.27 The INTERREG funds promote CBC as an instrument for the economic development of border regions with a view to overcoming the problems of regional markets in the peripheries of the EU. In this context the importance of the role of the State in terms of awareness promotion and trust-building has to be underlined: in fact, in order to make use of the funds, the State has to present five years’ cooperation programs envisaging the participation of the regional and local entities. The total amount of INTERREG-IIA (1994−1999) was around 4 billion ECU. Currently, the INTERREG initiative has entered its third phase, with a constantly increasing budget.28 The initiative is open to all border regions between Member States and between the European Union and non-Member States.29 There are special programs for the Eastern borders of the EU (Phare-Cross Border Cooperation Program)30 and cooperation with the successor States of the former Soviet Union (Tacis-Cross Border Cooperation Program).31 Another significant European initiative for the promotion of CBC is the LACE project, aimed at disseminating information and increasing the exchange of know-how related to CBC between European border regions.32 Additionally, other European initiatives grant (financial) aid to enterprises operating on a cross-border level.33 EC-law (and policies) increasingly determine and shape the phenomenon of CBC, with its typical bottom-up approach, by, though only in an indirect way, promoting economic cooperation (especially through generous financial support). Nevertheless, the legal foundations of CBC rest with the individual (and often different) domestic constitutional systems of the States.

27

Already in 1989, a first financial support of CBC activities had been included in Article 10 ERDF (European Regional Development Funds). See Commission des Communautés Européenes – Direction Générale des Politiques régionales, INTERREG. Fair sauter les frontiéres (Bruxelles, 1990) and the short overview given in Ferrara and Pasi, supra note 17, p. 7 et seq. 28 See Communication from the Commission to the Member States of 28 April 2000 laying down guidelines for a Community initiative concerning trans-European cooperation intended to encourage harmonious and balanced development of the European territory - Interreg III (OJ C 143, 23/05/2000, p. 6). 29 The specific aims of the EC’s structural policies are no longer a precondition; also local and private bodies can apply. 30 European Commission, Phare Cross-Border Cooperation Programme (Brussels, 1994). 31 See Special Report No 16/2000 of the Commission on tendering procedures for service contracts under the Phare and Tacis programmes, (OJ C 350 , 06/12/2000 p. 1). 32 LACE − Linkage Assistance and Cooperation for the European Border Regions. The operative assistance, e.g. assistance in the preparation of INTERREG-IIA-projects, is given by the Working Group of European Border Regions (AGEG). See AGEG/LACE (eds.), EGPilotprojekt LACE (AGEG, Gronau, 1991). 33 Cf. AGEG (ed.), Zusammenarbeit zwischen Unternehmen und Entwicklung in Grenzregionen (AGEG, Gronau, 1991).

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CROSS-BORDER COOPERATION AS AN INDICATOR FOR INSTITUTIONAL EVOLUTION OF AUTONOMY: THE CASE OF TRENTINO-SOUTH TYROL 2.3. Comparative Constitutional Analysis of Regional Treaty Making Power in Europe Usually a partial treaty making power is acknowledged to the constituent units of federal systems (e.g. Germany, Austria, Belgium), whereas the regional level of so called regional States (e.g. Spain and Italy) is normally not vested with such a power.34 A deeper analysis of the treaties and ‘foreign policy’ of the sub-national entities in the three federal States belonging to the EU shows that: • international treaties are only rarely resorted to by sub-national entities; • they can only be concluded if they respect some limitations; • these limitations prove to be the same as envisaged for the external relations of regions in regional States.35 2.3.1. Provisions in Federal and Regional EU Member States Concerning the limitations for the conclusion of international treaties, all three federal systems, Germany, Austria and Belgium, share the same basic rules. There are indeed procedural differences, yet basically the sub-national entities are allowed to conclude international treaties only under the following conditions: • the consent of the federal level is required (before or after conclusion); • the federal level plays a function of control and can always prohibit the conclusion of treaties or force the sub-national entities to denounce them; • the sub-national treaties shall not affect the international liability of the whole State or its foreign policy. Especially when it comes to foreign policy, the concrete limitations are largely of discretionary nature and result from previous intense cooperation between the sub-national entities and the Federation. In Germany Article 32 al. 3 of the Basic Law (GG) provides the Länder with treatymaking capacity in their fields of legislative competence. In 1957 the Länder freely agreed upon a limitation of their own treaty making power (Lindau agreement), recognising that in some matters falling into their sphere of competence (e.g. navigation, membership of international organizations, trade, etc.) the Länder-level was inadequate to operate efficiently. According to the Lindau agreement, treaties falling into the sphere of competence of the Länder may also be concluded by the 34

Cf. L. Pegoraro and A. Rinella, ‘Cooperazione transfrontaliera e potere estero: profili comparatistici (con particolare riferimento ad alcuni ordinamenti confinanti con l’Italia)’, in T. Groppi (ed.), Principio di autonomia e forma dello Stato. La partecipazione delle collettività territoriali alle funzioni dello Stato centrale nella prospettiva comparata (Giappichelli, Torino, 1998), p. 179 et seq. 35 Cf. F. Palermo, Il potere estero delle regioni (Cedam, Padova 1999) and F. Palermo, Die Außenbeziehungen der italienischen Regionen in rechtsvergleichender Sicht (Peter Lang, Frankfurt et al., 1999).

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FRANCESCO PALERMO AND JENS WOELK Federation, after a co-decision procedure with the Länder has taken place within a mixed commission. In other fields (e.g. school and culture) the Länder retain their treaty making capacity, yet agreements are quite limited in number and very similar to each other in content. Moreover, in almost all cases, the Federation is itself a contracting party to the treaties; whereby the necessary federal consent to the regional treaties is given.36 In addition, Article 59 GG reserves the exclusive competence to sign treaties ‘regulating political issues’ to the Federation, an open concept which may be variously interpreted in practice. In Austria the treaty making power was conferred to the Bundesländer only in 1988, in the framework of the federal reforms (these had begun in 1974 and have slowly but constantly granted a higher degree of substantial autonomy to the Bundesländer). However, since then, no international treaty has been concluded by the Austrian Bundesländer, even though in some cases concrete attempts have been made.37 This is mainly due to the complicated mechanisms of previous political control by the Federation (Article 16 B−VG) as well as − and above all − the attractive alternative for the Länder to cooperate with foreign countries, also in matters which do not fall into their legislative competence, simply by resorting to acts of private rather than public law (Article 17 B−VG). This mechanism does not only allow the ‘bypassing’ of the division of competencies between Bundesländer and the Federation, enshrined in the federal constitution, but it is also much more flexible in functional terms. In Belgium, a treaty making power for regions and communities was only introduced into the constitutional system at a later stage (1980), and found its way into the formal constitution only in 1993. Like in Austria (and unlike in Germany), this power was not granted for historical reasons, but rather for political reasons in the process of transition towards a federal constitutional order.38 Especially in the 1980s, Belgian regions and communities tended to use the instrument of the international treaty quite frequently, in particular for political aims, in order to underline their ‘quasi’-State-quality. After the formal transformation of Belgium into a federal State and the re-definition of the limits of international action of the sub-national entities (1993), a decrease in the number of treaties concluded by regions and communities can be observed. Nevertheless, Belgium still remains a country in which international treaties are basically used as a political instrument by sub-national entities, as an expression of the differences between the Belgian 36

O. Rojan, ‘Article 32’‚ in I. von Münch (ed.), Grundgesetz-Kommentar (C.H. Beck, München 1983), p. 309. 37 Carinthia and Styria with the Republic of Slovenia, (partially) Tyrol with South-Tyrol and Trentino, etc. Further examples in: W. Burtscher, ’Die Betätigung der Länder im Bereich des Auswärtigen und ihre Beteiligung an internationalen Abkommen’, in La acción exterior y comunitaria de los Länder, Regiones, Cantones y Comunidades Autónomas (IVAP, Oñati, 1995), p. 409. 38 R. Dehousse, Fédéralisme et relations internationales: une réflexion comparative (Bruylant, Bruxelles, 1991).

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CROSS-BORDER COOPERATION AS AN INDICATOR FOR INSTITUTIONAL EVOLUTION OF AUTONOMY: THE CASE OF TRENTINO-SOUTH TYROL cultures; significantly Belgian sub-national entities conclude international treaties mainly in the field of culture. The substantial limitations to the international activities of the constituent units of Federations are basically the same as envisaged by regional States' constitutions for the ‘external’ relations of the regions. In Italy and Spain, according to the constitutional provisions, neither the ‘ordinary’ regions nor the (historical) regional autonomies have any possibility to establish relations with foreign States or their regions.39 Nevertheless, the progress of European integration, the growth of the regional autonomy in both States and the continuous and rapidly increasing interaction of nearly all public activities (globalisation) required action on the part of the regions at the European and international level. Such an evolution in the Italian and Spanish ‘living Constitutions’ has many reasons. Firstly, both the Italian and the Spanish ‘regional’ constitutions provide some flexibility in order to allow an adequate evolution of the regional selfgovernment. Secondly, the legal base to reach some kind of regional external power has been found in the cooperation between the regional and the central government. In this sense, one could argue that ‘external relations’ are in fact merely an ‘internal matter’, because the regions may establish some relation with foreign public bodies only through cooperation with the State. Finally, an important role in this matter was played by the constitutional courts in both countries. The Courts (especially the Italian Court) developed different types of regional external activities as allowed under the constitutional order.40 All activities are subject to limitations, which are basically the same as those envisaged in federal systems: • no interference with the international liability of the State and its foreign policy; • mechanisms of State control; • consent of the central State. The State has to be informed about the regional external activities and can eventually even interdict them, if they violate two basic principles: the international liability of the State and the consistency of the foreign policy guidelines of the State. In case of a denial, the regions may appeal to the Constitutional Court. These basic principles become limitations for the regions, if the latter are not able to cooperate with the State. Efficient co-operation reduces the need for State

39

G. S. Beltran, La cooperación interregional o la conclusión de acuerdos por los entes subestatales en Europa; los casos particulares de Italia y Espana (Barcelona 1993). 40 G. Sacerdoti, ‘La cooperazione interregionale europea tra vincoli costituzionali e principi di diritto internazionale’, in A. Mattioni and G. Sacerdoti (eds.), ‘Regioni, costituzione e rapporti internazionali. Relazioni con la Comunità europea e cooperazione transfrontaliera’(Angeli, Milano 1995), pp. 41 et seq., and L. Pegoraro and A. Rinella, supra note 34, pp. 179 et seq.

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FRANCESCO PALERMO AND JENS WOELK control and the discretion of the State in considering whether a regional activity interferes with the ‘the foreign policy guidelines’.41 2.3.2. Constitutional Cooperation as the very Essence of the Law on CBC Modern public law increasingly resembles private law: on the one hand the autonomy of the individual to negotiate his or her own conditions, the fundament of private law, is starting to characterise also the relations between public bodies; on the other, a wide range of functions, previously performed with public law instruments, are now subject to privatisation. Therefore private law is more and more used by public bodies instead of public law. In the field of CBC its use is even more frequent, because of the lack of specific public law instruments. However, as the autonomy of private persons to stipulate contracts is not unlimited, also CBC is subject to some limitations. While the limitations posed by international liability, foreign policy and State control must be respected in any case, there is reciprocity in the activities of regions abroad and the mechanisms of State intervention to control and prohibit them. Therefore, legally speaking, and especially from a constitutional perspective, CBC does not constitute a matter of competence, assigned to one or another level of government, but rather a set of procedural rules. Since it is impossible to define precisely the single activities and measures that regions may carry out and adopt within the framework of CBC, the legal regulation of CBC does not (and cannot) deal with specific cases, but only with a procedural framework for their realisation. It has become clear from the comparative analysis that the principles and limitations governing CBC are common to both, ‘regional’ States (Italy, Spain) and ‘federal’ States (Austria, Germany, Belgium). The federal systems basically tend to provide the sub-national entities with a limited treaty making power, whereas this is not the case in ‘regional’ constitutional orders. Nevertheless, the practical use of this power by the sub-national entities is very limited (Germany, mutatis mutandis Belgium) or does not even exist (Austria). Also the controlling power of the central State is provided for in both the federal and the regional systems, in order to guarantee a consistent foreign policy of the whole state as well as its international liability. In short, the activities of CBC represent new ‘experimental’ law. As soft law or in form of private law;42 the rules of experimentation are provided by the cooperation within the domestic constitutional order, influenced by international and European law as well as practice. To be able to cooperate with foreign entities and States, the sub-national entities must first of all cooperate with and within the central State. This fits into the general scheme of weakening State-control, which is

41 42

Palermo, supra note 35. Toniatti, supra note 23, p. 43.

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CROSS-BORDER COOPERATION AS AN INDICATOR FOR INSTITUTIONAL EVOLUTION OF AUTONOMY: THE CASE OF TRENTINO-SOUTH TYROL increasingly offset by more participation and cooperation (cooperative federalism and regionalism).43 The more intensive the cooperation between the central State and the regions, the more effective are the procedures of CBC. Therefore, the best way to improve the cross-border cooperation capacity of regions is improving the effectiveness of cooperative mechanisms between the regions and the central State. This explains why – paradoxically – the absence of constitutional provisions concerning the external relations of the regions (as in the case of Italy and Spain) turns out to be even an advantage for the flexible evolution of CBC. In fact, ‘law-in-the-making’ can more easily develop where there is no (or there is only limited) formal law in place: in our case, experimental law of CBC (and other regional external relations) could be ‘tested’ in Italy and Spain, where the constitutional courts ‘followed’ the ‘living constitution’ step by step and adapted it to the ‘concrete necessary law’. The increasing internationalisation of almost all activities, as a result of ‘globalisation’, requires soft and flexible instruments. Thus, international treaties concluded by sub-national entities play only a very modest role in the field of CBC. As shown before, these treaties can be considered additional instruments, but legal limitations by the central State are often more effective than their actual scope of application. Consequently, in most cases CBC is enacted through different mechanisms.44 To some extent, the uncertainty concerning the very legal nature of CBC mirrors the uncertainty of early European Law.45 While there were a lot of disputes on the nature of EC Law during the first decades of European integration, today EC Law is generally accepted as a category of its own.46 The same seems to be true for CBC. Furthermore, in both constitutional systems (federal and regional), mechanisms of internal cooperation are much more important – in practical terms – than a formalised treaty-making power, when it comes to the effective exercise of external relations by sub-national entities. 3. THE WAY TO AN ALPINE EUROREGION The experience of cross-border cooperation between Tyrol, South Tyrol and Trentino, including the recent attempts of establishing a Euroregion, can be 43

J. Woelk, Konfliktregelung und Kooperation im italienischen und deutschen Verfassungsrecht (Nomos, Baden Baden, 1999) and R. Bifulco, La cooperazione nello stato unitario composto (Cedam, Padova 1995). 44 In Germany, in addition to Article 32 al. 3 GG − Basic Law (foreign powers of the Länder), rarely used, a new constitutional provision has been adopted in 1994 (Article 24 al. 1a GG), in order to permit the creation of permanent CBC bodies of public law. This provision represents the only attempt to formalise innovative legal forms of CBC at the Constitutional level, so far. 45 Cf. S. Ortino, ‘Uno spunto di riflessione: l’Euregio e la fase iniziale delle Comunità europee’, in Pernthaler and Ortino (eds.), supra note 21, p. 107. 46 See European Court of Justice, Judgment of 5 February 1963, Van Gend en Loos, case 26/62.

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FRANCESCO PALERMO AND JENS WOELK subdivided into three phases: at its origins stood the ‘soft’ cooperation in the working groups Arge Alp and Alpe Adria, embedded in a greater Alpine regional context. It was followed by the idea of an institutionalised form of CBC across the Brenner, widely known as ‘Euregio Tyrol’, which was controversially discussed because of its high degree of institutionalisation and the clear reference made (even by name) to the historical entity of Tyrol. This experience, and the resistance it created, finally led to a third phase characterised by concrete projects with a functional dimension. The political management of the project to establish a Euroregion on both sides of the Brenner-pass will be an especially important indicator in order to understand whether self-government in relatively stable post-conflict situations can develop in the direction of a more functional regional autonomy, reaching even beyond national borders in the framework of necessary co-operation between similar local institutions, or whether the instruments of ‘ethnic checks and balances’ which (successfully) characterised the enactment of the autonomy statute until 1992 will continue to prevail.47 3.1. Origins of CBC in the Alps Alongside with the confirmation of the Austrian and Italian borders after WW II, a first recognition of the close links between the different parts of Tyrol can be found already in 1946 in the Peace Treaty between Italy and Western Allies, which in its annex contained special guarantees in favour of the German-speaking group in South Tyrol (Gruber-De Gasperi Agreement). In its Article 3 lit. (d) it provided for ‘special agreements aimed at facilitating enlarged frontier traffic and local exchanges of certain quantities of characteristic products and goods between Austria and Italy’.48 Only three years after the Paris Peace Treaty, the so-called Accordino, a bilateral treaty between Austria and Italy permitted pragmatic solutions in the fields of cross-border trade and commerce.49 It can be seen as an attempt to accommodate the needs of the populations on both sides of the border in order to contribute to the post-war reconstruction and development of these areas. In their social and economic characteristics Tyrol, South Tyrol and Trentino, all three typical Alpine regions with mountainous terrain and a low density of population, show more similarities than complementary features. Due to the geoeconomic situation, this is particularly true in the economic field where the servicesector clearly dominates and the industrial sector is not very developed. Agriculture still plays an important role in the economy, especially in South Tyrol. Situated 47

See Pernthaler and Ortino (eds.), supra note 21. Also envisaged was an agreement on the mutual recognition of ‘certain [sic!] degrees and university diplomas’ as well as ‘a convention for the free passengers and goods transit between Northern and Eastern Tyrol’. 49 A. de Guttry and N. Ronzitti, I rapporti di vicinato tra Italia e Austria (Giuffré, Milano, 1987). 48

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CROSS-BORDER COOPERATION AS AN INDICATOR FOR INSTITUTIONAL EVOLUTION OF AUTONOMY: THE CASE OF TRENTINO-SOUTH TYROL between the two most economically developed areas of Europe, Northern Italy and Southern Germany, the three regions do not only form the only natural passageway through the Alps, but are also touristic resorts for the surrounding areas. The protection of the unique Alpine environment, the traffic problem and the promotion and development of tourism are therefore natural and interrelated common interests of all three entities. There are, however, also countertendencies in this picture: especially in the fields of tourism, and milk and apple production in which the three entities offer similar products and thereby act as competitors.50 A second step towards CBC followed in the 1970s in a much broader, regional context when two working communities, ARGE ALP and ALPE ADRIA (Alps Adriatic), were created in the alpine regions which provided fora for discussions, exchange etc. This soft cooperation between regions of different kind and legal status covers nearly the whole extension of the Alps, including even Slovenia and Croatia, quite remarkable at that time.51 Since its foundation in 1978, the main task of the working community Alps Adriatic is joint informative expert treatment and co-ordination of issues in the interest of its members.52 Special attention is dedicated to the following areas (Article 3 of the Joint Declaration 1978): trans-Alpine traffic links, port traffic, generation and transmission of energy, agriculture, forestry, water management, tourism, environmental protection, nature conservation, landscape care, preservation of cultural and recreational landscape, regional development, settlement development, cultural relations and contacts between scientific facilities. The working community Alps Adriatic has no legal personality, and no central, administrative body was installed. The annual Plenary Assembly of the Heads of Government of the 19 member regions adopts resolutions of a fundamental nature by common consent. The languages of negotiations are German, Croatian, Italian, Slovene and Hungarian. A commission of executive officers is installed to support the Plenary Assembly in technical matters. The substantial work is carried out by

50 P. Pasi, ‘La cooperazione transfrontaliera nell’area Trentino-Tirolese’, in W. Ferrara and P. Pasi, Come funzionano le euroregioni. Esplorazione in sette casi (I.S.I.G., Gorizia, 2000), pp. 111, 112. 51 R. Kicker, ’The Achievements of the Cross-Border Regional Working Community AlpsAdria and its Future Role in a Europe of the Regions’, 49 Österreichische Zeitschrift für öffentliches Recht und Völkerrecht ÖZöRV/AJPIL (1995) p. 347 et seq., G. Conetti, Rechtsmittel des Völkerrechts und des Gemeinschaftsrechts zur Schaffung einer zwischenstaatlichen europäischen Region im territorialen Rahmen der Region TrentinoSüdtirol, der autonomen Provinz Trient und Bozen und der österreichischen Länder Tirol und Vorarlberg, in: Autonome Region Trentino-Südtirol (ed.), Die grenzüberschreitende Zusammenarbeit in Trentino-Südtirol, Tirol und Vorarlberg: Vorschläge für ihre Entwicklung (Autonome Region Trentino-Südtirol, Trento 1993), pp. 13 et seq. 52 The basic act, the Joint Declaration of Venice, was adopted at the Foundation Meeting of the Working Community of States and Regions of the Eastern Alpine Regions (ALPS ADRIATIC), 20 November 1978.

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FRANCESCO PALERMO AND JENS WOELK five standing special commissions.53 Costs are basically borne by each member region/State itself.54 The diversity of the member-entities (ranging from large Bavaria to tiny Liechtenstein) and their consequently different interests have certainly been a major obstacle to closer integration between the members. Both working communities, however, contributed to a cooperation-friendly environment by personal contacts, the exchange of information, the creation of networks, etc. which slowly set up a useful political-institutional context into which single cross-border initiatives could be embedded. Due to the lack of provisions regarding CBC activities in the constitutional provisions of the participant States and their sub-national entities, the first proposals for closer cooperation in the alpine area were made after a (first) legal base for CBC had been laid by international law in 1980 with the Outline Convention of Madrid, which included a number of fields in which CBC was not only tolerated, but (at least in principle) recommended by the ratifying States. However, as shown above, even after the ratification of the Convention, single CBC-activities still had (and have) to pass the constitutional test in each concerned State, i.e. conformity with national provisions and procedures.55 The discussions on cross-border activities as a means to overcome the division on historical Tyrol intensified after 1989, and became more popular after the full implementation of the enactment measures, when the conflict was formally ‘settled’ in 1992.56 Institutional forms were promoted particularly by those who had opposed the ‘Package’ compromise in 1969, mixing ethnic and linguistic aspects with political objectives.57 It was in 1985, that the expression of a ‘European Region of Tyrol’ was introduced in the political debate by the ‘Europa Union Tirol’, subsequent to its earlier project of a ‘European solution for South Tyrol’.58

53

The five standing special commissions are: Regional development and environmental protection; Economic affairs, traffic and tourism; Culture and society; Health and social affairs; Agriculture and forestry. These special commissions install permanent ‘working groups’ or temporary ‘project groups’ for specific plans as required. The chair in the commissions and working groups rotates every four years in alphabetical order. 54 Costs of the interpretation service are assumed by the host region. Since 1991, a Joint Budget amounting to 1.5 million Austrian schillings (1 January 1995) is administered by the Records Office in Klagenfurt. Administration of the working community (organisation of the Plenary Assembly and the Meeting of the Commission of Executive Officers) is incumbent on the Alps Adriatic section of the respective chair; all member regions have installed such sections with varying staff capacities charged with co-ordination of neighbourly contacts. 55 By Austria in 1983, BGBl. 1983/52, by Italy in 1984, Law of 19.11.1984, n. 948. 56 See, for example, F. Pahl, Tiroler Einheit – jetzt! (Arndt Verlag, Kiel, 1991), who recommended the ‘slovenian way’ towards independence. 57 F. Pahl, Eine Grenzregion für Europa (Autonome Region Trentino-Südtirol, Trient, 1993). 58 Europa-Union Tirol (ed.), Europa der Regionen - Süd-Tirol. Weg in die Zukunft (Bruneck, 1984), and E. Stoll and F. Esterbauer, Tirol und Europa, edited by Europa Union Tirol (Bruneck, 1979).

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CROSS-BORDER COOPERATION AS AN INDICATOR FOR INSTITUTIONAL EVOLUTION OF AUTONOMY: THE CASE OF TRENTINO-SOUTH TYROL The theoretical basis for these and other similar proposals had been provided by a group of ‘ethnofederalists’ who emphasised ethnic and cultural homogeneity as the central means for avoiding conflicts, connecting it with the concept of community (sharing of the same traditional values), in contrast to that of society (understood as politically pluralistic secular system). In the name of a ‘Europe of Peoples’, populations sharing the same language and traditions, i.e. ‘ethnic communities’, should have the right to claim their ‘own’ distinct and autonomous territorial entities.59 In order to achieve the reunification of an ethnically homogeneous North and South Tyrol, the above mentioned project of 1979 (‘European solution for South Tyrol’) even suggested the creation of a sort of Italian territorial enclave in South Tyrol, consisting of the centres of Bozen/Bolzano and Leifers/Laives where 90% of the Italians in South Tyrol lived at that time.60 In the name of self-determination for the South Tyrolean people even the foundation of a ‘European Free State of South Tyrol’ had been proposed.61 In the following period, tensions were on the rise again in South Tyrol, and even a new series of bombings contributed to the worsening of the political climate. The Austrian and Italian governments reacted quite harshly. In the meantime, the process of European integration had made notable progress, as evidence by the Common Market and the Maastricht-Treaty. The ethnofederalists, in fighting against centralist States, had overlooked that due to supranational integration State-sovereignty had already been eroded to an extent that did not any longer allow for identity of politics and territory.62 In the emerging model of multilevel-governance the regions became a third level, increasingly recognised also in EC and EU Law. 3.2. Attempts at Institutionalisation: ‘Euregio Tyrol’ and Joint Bureau of Representation in Brussels In 1991, a first joint meeting of the assemblies of Vorarlberg, Tyrol, South Tyrol and Trentino took place, only two years later the assemblies decided, again in joint session, to begin with CBC activities on a larger scale, including institutionalised forms, expressly referring to the positive, but limited experiences on the basis of the 59

See for the idea of a sort of ‘ethnic federalism and regionalism’, G. Héraud, Popoli e lingue d'Europa (Ferro, Milano, 1966) and – softer – F. Esterbauer et al., Föderalismus als Mittel permanenter Konfliktregelung (Braumüller, Wien 1977). For a critical analysis, see S. Baur et al, supra note, p. 272, and B. Luverà, supra note 6. 60 Stoll and Esterbauer, supra note 58, p. 36 et seq. 61 F. Ermacora, Verfassungsmodell für einen europäischen Freistaat Süd-Tirol, in EuropaUnion Tirol (ed.), Das Selbstbestimmungsrecht des Südtiroler Volkes aufgrund des Völkerrechts/The Right of the People of Southern Tyrol to Self-determination Based on International Law (Bruneck, 1987), p. 59 et seq. 62 G. Pallaver, ‘Cooperazione transfrontaliera’, in J. Marko et al. (eds.), L'ordinamento speciale della Provincia autonoma di Bolzano (Cedam, Padova, 2001), p. 943.

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FRANCESCO PALERMO AND JENS WOELK so-called Accordino.63 This fit into a larger scheme as, after the South Tyrolean question had been officially settled in 1992, Italy and Austria had stipulated a bilateral treaty on CBC in January 1993,64 thus enacting the Madrid Convention and specifying matters and (general) procedures as a framework for concrete measures to be taken by the respective entities.65 In particular, the Framework-treaty obliges the acting territorial entities to inform the central authorities about any negotiations and excludes any financial responsibility of the central State, as well as, quite remarkably, the international liability of the States (Article 5); it also repeats the limitation of CBC to matters within the powers of the entities as regulated by national law (Articles 2 and 3). Article 4.1 contains a list of matters which can be the subject of cross-border agreements;66 Article 4.2 provides for the future addition of further matters, by agreement of the concluding partners of the treaty (i.e. the central States). The treaty does not only apply to territories directly bordering with Austrian entities, its application is explicitly extended to the Autonomous Province of Trentino, the Regions Friuli-Venezia Giulia and Veneto as well as to the Region Trentino-South

63 In Innsbruck, 2 June 1993; see Documents in Pernthaler and Ortino (eds.), supra note 21, pp. 221 et seq.; cf. W. Hummer, ‘Zukunftsperspektiven des “Accordino”’, in Autonome Region Trentino-Südtirol (ed.), Binnenmarkt, Drittländer und Regionen (Autonome Region Trentino-Südtirol, Trento, 1991), p. 67 et seq. After a joint session in 1992, in which only the Assemblies of North and South Tyrol had participated, this time, also Trentino was included, and the elaboration of a draft-convention for the establishment of a Euroregion, which could be realised within the limits of the actual legal framework, was adopted. See R. Gismann, ‘Die (Vor-)Geschichte des Statut-Entwurfs’, in Pernthaler and Ortino (eds.), supra note 21, pp. 53 et seq. and P. Pasi, ‘La cooperazione transfrontaliera nell’area Trentino-Tirolese’, in Ferrara and Pasi, supra note 17, pp. 114, 115. 64 27 January 1993; it entered into force in Italy on 1 August 1995 (Law n. 76, 8 March 1995); see Documents in Pernthaler and Ortino (eds.), supra note 21, pp. 215 et seq. 65 Article 3.2 of the Madrid Convention provides for bilateral treaties as a precondition for enacting the Convention; Italy has used this clause when ratifying the Convention (ratification by L. n. 948, 19 November 1984), the bilateral Framework-treaty with Austria thus constitutes the third step, R. Toniatti, ‘La bozza di statuto della Regione europea’, in Pernthaler and Ortino (eds.), supra note 21, pp. 28 et seq. See also G. ‘Conetti, Rechtsmittel des Völkerrechts und des Gemeinschaftsrechts zur Schaffung einer zwischenstaatlichen europäischen Region im territorialen Rahmen der Region Trentino-Südtirol, der autonomen Provinz Trient und Bozen und der österreichischen Länder Tirol und Vorarlberg’, in: Autonome Region Trentino-Südtirol (ed.), Die grenzüberschreitende Zusammenarbeit in Trentino-Südtirol, Tirol und Vorarlberg: Vorschläge für ihre Entwicklung (Autonome Region Trentino-Südtirol, Trento, 1993), pp. 13 et seq. 66 Traffic, energy, nature and protection of the environment, cross-border parks, crafts and professional education, public health systems, culture, sports, civil protection, tourism, issues regarding cross-border commuters, promotion of trade, fairs and markets, improvement of the agricultural structures, social institutions, applied scientific and technological research.

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CROSS-BORDER COOPERATION AS AN INDICATOR FOR INSTITUTIONAL EVOLUTION OF AUTONOMY: THE CASE OF TRENTINO-SOUTH TYROL Tyrol, a recognition of the specific interests in cooperation of these areas by the Italian State.67 But in the case of Austria and Italy, there were only a few parallel competencies of Länder and Regions or autonomous Provinces suitable for CBC activities, in particular in the fields of protection of the environment, culture, sports, civil disaster-protection and relief, and improvement of the agricultural structures. Other important fields like transport and telecommunications, crafts, professional education, trade and commerce, fairs and markets are federal competencies in Austria, and therefore basically excluded, even though the Austrian Länder have a nearly unlimited capacity of acting in forms of private law.68 A next step was the establishment of a Round Table of experts in 1995 in order to explore possible ways of institutionalised CBC between the two Italian autonomous provinces and the Austrian Land Tyrol (Vorarlberg had renounced on an active role). The ‘Euregio Tyrol’ Draft-Statute, worked out by the group of experts and presented in 1996, suggested a highly institutionalised form of crossborder cooperation, a so-called ‘maximum hypothesis’, while expressly referring to respect for the existing international and constitutional laws.69 The Draft-Statute suggests the establishment of a ‘Euroregion’ as ‘a common, permanent organization’ in the legal form of a ‘public law entity’ (Article 1). By means of its permanent organs (Council, Assembly, Executive; Article 9) it should function as a common institutional and procedural framework for the enactment of CBC activities, as gradually developed by agreements and programs. Thus, its structure was quite similar to that of an international governmental organisation. The single coordination and programmatic activities were to be implemented by decisions of ‘enactment-programs’ (for single matters) with binding force, in accordance with the framework-treaty of 1993. The legal nature of these ‘enactmentprograms’ is generally administrative law (executive agreements); the decisions are taken jointly as – in practice - one common decision (legally, of course, they still remain three distinct decisions, taken at the same moment and in the same place by organs of different entities). If legislative measures were necessary for their implementation, these would have had to be taken by the respective assemblies – in that specific case the decision taken by the executive organs would have been conditioned by their consent and subsequent transformation into an internal law or normative act. The draft-proposal was very controversially discussed, especially because of fears of revisionist goals: should the reunification of Tyrol be achieved by the ‘softer’ means of a Euroregion? Was a new political-territorial body, a ‘Statelet’ 67

As an exception of the general requirement of geographic vicinity to the border (max. 25 km) established by Article 4, L. n. 948, 19 November 1984. 68 Under Article 17 Austrian Federal Constitution. Cf. P. Hilpold, Die rechtliche Grundlegung der Europaregion Tirol, in S. Mumelter (ed.), Europaregion Tirol, Gestaltung unseres Lebensraumes im Europa von morgen (Innsbruck, 1994), p. 20 et seq. 69 See Documents in Pernthaler and Ortino (eds.), supra note 21, pp. 233 et seq.

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FRANCESCO PALERMO AND JENS WOELK (mini-State) about to be established? Why else did it need legal personality under public law and why a political representation? What about the multicultural and multilingual character of such an entity? The existing ethnic balances could be disturbed by establishing a new political, Euro-regional level, on which the Germanspeakers (North and South Tyrolese) would form a clear majority.70 Which democratic guarantees and legal instruments of control would counterbalance the preponderant executive of the three participating entities? Also, the central governments of both States reacted quite sharply: in June 1995 the Italian government rejected as unconstitutional two articles of a regional law on cross-border cooperation which provided for funding of CBC activities, but explicitly referred to the establishment of a ‘European Region of Tyrol’, whereas a considerable amount of money for the promotion of contacts and other cross-border activities passed the government control without any difficulty. In the 1995 annual report on security edited by the Italian Ministry of the Interior, the Euregio-project was defined provocative and even subversive (‘eversivo’). In November 1995 Italian President Scalfaro, on a visit in Trento, not only warned of a ‘Grand Tyrol’, but also declared that times were not yet mature for ‘interstate-regions’.71 The Austrian Federal government also reacted sharply, by expressing worries and doubts. In internal expert opinions the Austrian Federal government objected that it had not been informed about the beginning of negotiations, as foreseen by Article 16 of the Constitution, and that ‘public law entities’ were totally unknown to international law (at least before the Additional Protocol of 1995 which expressly permits the establishment of ‘transfrontier cooperation bodies’). There was a general ‘uneasiness’ about the statute, because of the autonomous legal system established for the ‘Euregio’ (mechanisms, procedures and legal acts) which did not fit into the Austrian nor into the Italian legal system. This ‘uneasiness’ could not be overcome by the reservation-clause that both national legal systems were to be respected. Critically judged were also the means and procedures of judicial control as well as the list of matters which exceeded the powers of the Austrian Land Tyrol.72 After long discussions at political and academic levels these plans were put in the archives, the ‘Euroregion Tyrol’ would not be realised, at least not the form of a public law entity.73 This project had too much of an ideological construction. It was increasingly felt that instead of ethnic nationalism concrete steps towards a crossborder cooperation between the civil societies of the involved entities should be promoted.74 Due to the increasing importance of decisions taken at the EU level (which often are to be implemented at the regional level) the three entities, in 1995, decided 70

This potential danger is pointed out by Luverà, supra note 6. Pasi, supra note 50, p. 114. 72 See the official comments of the Federal Chancellor’s Office and of the Ministry of Foreign Affairs, Documents in Pernthaler and Ortino (eds.), supra note 21, pp. 279 and 289 et seq. 73 Joint Sessions of the Assemblies of Tyrol, South Tyrol and Trentino in Riva del Garda, 1996. 74 A. Pelinka, ‘Euregio tirolese. Fantasma o chances?’, Il Mulino (1996) p. 787 et seq. 71

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CROSS-BORDER COOPERATION AS AN INDICATOR FOR INSTITUTIONAL EVOLUTION OF AUTONOMY: THE CASE OF TRENTINO-SOUTH TYROL to open a joint Bureau of representation of their interests in Brussels.75 Although in a first phase only the Austrian Land Tyrol participated directly, and both Italian autonomous provinces were represented by their respective Chambers of Commerce, the Italian government interpreted this move as an act of regional foreign policy in violation of the Italian Constitution which consequently led to a claim before the Italian Constitutional Court (challenging the convention between the Autonomous Province and the Chamber of Commerce of Bolzano concerning the office in Brussels). The government had informed all representatives of State authorities not to participate in the inauguration event. In January 1996 there was even a judicial enquiry concerning the Brussels office. In the view of the government, according to Articles 80 and 87 of the Italian Constitution (only) the central State vests the power of external affairs and representation, even though, by ordinary law, the regions can also be enabled to engage in cross-border activities. In the jurisprudence of the Constitutional Court two main categories have been distinguished: activities concerning external relations in a broader sense (‘attività di mero rilievo internazionale’) and trans-frontier promotional activities (‘attività promozionali’).76 The latter activities are measures in the fields of exclusive regional power, aimed at the social, economic and cultural development of the region, and can be taken after consent by the central government, which has also a coordination-competency in these fields.77 However, the ‘external activities in a broader sense’, which cover a wide range of activities, including visits, meetings and conferences and the participation in cultural, social and economic initiatives, also require the prior consent of the central government, although there is generally an assumption for such a consent. Surprisingly, this principle had not always been observed in the praxis of ‘soft’ cooperation within the context of ARGE ALP and Alps Adriatic, i.e. in the external activities performed by the Regions before they were formally entitled to act outside their jurisdiction (which was provided by means of a decree of 1980, subsequently replaced in 1994). In the decree of 31 March 1994 the Italian Government had stressed that cooperation between the central government and the regional authorities constitutes the basis for (all types of) regional ‘external’ activities.78 These have to be examined 75

For more information on the Joint Office in Brussels, see the Europaregion’s website: , 10 March 2003. 76 Italian Constitutional Court, judgments n. 170/1975, 123/1980, 223/1984, 187/1985, 179/1987 and 564/1988. See S. Bartole, ‘Il potere estero delle Regioni’, in S. Bartole (ed.), L’ordinamento regionale. Materiali di giurisprudenza costituzionale (Il Mulino, Bologna, 1997), p. 43 et seq. and R. Bin, ‘Attività di “mero rilievo internazionale”, attività “promozionali” e attività di “rilievo comunitario”’, Le Regioni (1993) 1321 et seq. 77 D. Florenzano, Le attività promozionali delle Regioni e le leggi Bassanini (ed. prov., Trento, 2000). For a description see also R. Pilia, ‘Potere estero’ delle Regioni e cooperazione transfrontaliera nell’Unione europea’, Diritto pubblico comparato ed europeo (2000) 1400. 78 For details see S. Bartole, ‘Negoziazioni regionali all’estero e assensi o intese statali’, Le Regioni (1994) 624 et seq.

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FRANCESCO PALERMO AND JENS WOELK by the central government with regard to their conformity with the national interest and the national foreign policy.79 This decree led to a number of controversial decisions by the Italian Constitutional Court, in which on one hand the competencies of the regions to perform ‘external’ activities − within the limits of directives set by the central government − were confirmed by the Court, and, on the other hand, the powers of the central government to limit these activities by directives was reduced to the mere faculty of establishing a set of principles, at least with regard to the autonomous regions and provinces.80 Only in 1997 did the Court rule (428/1997) that in the above mentioned case of the Brussels Bureau the necessary cooperation procedure had not been observed, but, making reference to the principles of cooperation and of subsidiarity, also underlined that there was principally no obstacle which could be posed against such initiatives by the State.81 Thus, the litigation between Province and State had been ‘politically defused’. This, in combination with a Law adopted in the interim (1996) allowing all regions to directly establish and operate such liaison-offices in Brussels, resulted in both autonomous Provinces deciding to participate directly in running their joint representation in Brussels.82 The long-lasting struggle between the autonomous Provinces (and, to a lesser extent, the other regions) and the central government demonstrates the importance of factors like the time-dimension, the attitude to cooperation and the role of an independent judicial body in order to guarantee the respect of the rule of law in pivotal situations establishing new rules which may go beyond the traditional concepts of State-based sovereignty, following more modern and functional criteria of governance. 3.3. Recent Developments: Towards a Functionally−Oriented CBC After the failed attempts of establishing a cross-border entity, concrete administrative and political cooperation on a variety of matters, instead of institutionalisation, seems to be the new guiding-line. This corresponds to the

79

Two forms of which can be distinguished: the (privileged) ‘promotional activities’ and the ‘activities with external effects’ which are subject to more rigid forms of State-control, see Palermo, supra note 35, pp. 174 et seq. 80 Palermo, supra note 35, p. 192 et seq. and C. De Fiores, ‘Riserva allo Stato dei rapporti internazionali e ruolo delle Regioni. Le nuove prospettive del “potere estero”’, Giurisprudenza costituzionale (1996) p. 3010 et seq. 81 Judgment of (16.) 23.12.1997, n. 428, (1998) Le Regioni, p. 406 et seq.; Q. Camerlengo, Riflessioni sulle attività internazionali delle Regioni, Le Regioni (1997) p. 193 et seq.; L. Violini, ‘Nuove dimensioni nei rapporti tra enti infrastatali europei: prime note su una giurisprudenza in evoluzione in materia di Euroregioni, rapporti transfrontalieri e uffici regionali di rappresentanza di Bruxelles’, Le Regioni (1998) 409 et seq. 82 Law of 6 February 1996 no. 52 (Legge comunitaria 1996).

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CROSS-BORDER COOPERATION AS AN INDICATOR FOR INSTITUTIONAL EVOLUTION OF AUTONOMY: THE CASE OF TRENTINO-SOUTH TYROL ‘bottom-up approach’ and to the pragmatic character typical for the majority of CBC activities elsewhere and approved by the population.83 In 1998 a ‘Convention about cross-border cooperation in the framework of a Euroregion between the Autonomous Province of Bozen/Bolzano, the Autonomous Province of Trento and the Land Tirol’ was signed by the governments of Tyrol and Trentino and the South Tyrolean Provincial Council (i.e. assembly), thus keeping distance from ideological connotations (like ‘Euregio Tyrol’) and implementing the 1993 bilateral Framework treaty on CBC between Austria and Italy. In Article 1 of the Convention, general reference is made to legal and operative forms of organisation which guarantee the cooperation activities in a binding way. Only a few days later, on 1 April 1998, the Schengen Treaty entered into force between Austria and Italy, practically reducing the significance of the long contested Brenner border from a physical obstacle to a mere administrative one. The vision of the border area as a contact area does not any longer have physical obstacles. In July 1998 the three governments inaugurated the new ‘soft-Euroregion’, essentially based on a political and functional, instead of institutionalised, cooperation.84 The current, functionally-oriented CBC activities include a number of INTERREG projects including (sometimes on a sub-provincial level, sometimes in a wider framework including Carinthia and Veneto as neighbouring regions) transplantation, mountain helicopter-rescue (in cooperation with Swiss authorities), culture (e.g. a common exhibition of and in the three entities), the representation as a Euroregion at the Hannover World Exposition, etc., and are carried out by different legal means, depending on the activity to perform. New opportunities could be ahead after the signing of the additional protocol no. 2 of the Madrid Outline Convention by Italy in December 2000. The latest initiatives in this ‘soft law-cooperation’ between the three entities comprise the establishment of an integrated university course for engineers (Universities of Trento and Innsbruck, January 2001) as well as a ‘Declaration of the Alps’, 26 January 2001. This document, a kind of ‘expression of interests’ consisting of a preamble and nine chapters, serves as a specific basis for joint initiatives aiming at a common policy of the three alpine entities in various fields, e.g. agriculture, tourism, economic growth, traffic and infrastructure, education, research and culture as well as the joint use of European funds.85 Since November 83 According to a series of enquiries and opinion-polls, the majority of the population in all three entities agrees upon the necessity and the use of a functional approach, whereas, especially in Trentino and in the Italian population, there are strong resentments against any institutionalised project of “Euregio”; see R. Nick and G. Pallaver, Jenseits von Grenzen. Die Europaregion aus Sicht der Bevölkerung. Tirol-Südtirol-Trentino (Studia-Universitätsverlag, Innsbruck 1998). 84 See the Europaregion’s new website: , 10 March 2003. 85 Ibid. See for further initiatives the contribution in the Italian review [2001] Le Regioni, no. 5.

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FRANCESCO PALERMO AND JENS WOELK 2002 the permanent secretary for the implementation of the Alpine Convention has been established in Innsbruck and Bolzano/Bozen. All these concrete initiatives have contributed to a ‘de-ideologisation’ of the Euroregion project.86 4. CONCLUDING REMARKS Cooperation across borders basically means the sharing of resources by entities belonging to different States in order to jointly find solutions to common problems and thus contributing to mutual wealth. Among the basic conditions which have to be met for a successful cooperation is not only physical neighbourhood, but all important and foremost is mutual trust between all the partners involved, i.e. both regions and central States. Of special importance is a supportive attitude in the population, in order to overcome the numerous legal, institutional, political, administrative, financial, social and economic as well as cultural difficulties, usually created by the very border itself, and to develop a ‘common vision’ among the partners.87 The legal problems, caused by different legal systems, are still particularly difficult obstacles for CBC to overcome, even though much can be (and has been) done in the form of private law. Apart from the uncertainty in the qualification of cross-border entities (which in most cases still do not have legal personality), often acts and measures adopted within the sphere of CBC are without any legal force and of mere political value, practically reduced to recommendations or declarations of intent. The Additional Protocol of 1995 will certainly change the picture, even though the approval by the central level will remain a precondition for interregional activities (by means of general regulation in bilateral or multilateral framework treaties, or through instruments of State control). 4.1. Functional Cross-Border Cooperation as a Means to Improve Post-Conflict Situations? Due to the changing role of the State, cross-border activities of sub-national entities can not any longer be seen as a threat to State sovereignty, at least in the peaceful and integrated context of Western Europe, but offer opportunities of new, horizontal links between the States. The effects of CBC are closer integration and the transformation of the (former) periphery into a plurality of contact areas. As these observations are certainly true for most cases of cooperation inside the European Union their application might be more difficult in other regional contexts, e.g. in Eastern Europe, where the role of the nation-State still is of fundamental importance for the young democracies preparing for EU accession (in part as 86 However, delicate issues can always come to the fore anew: In June 2002 the Joint Assembly of the three entities was interrupted and dissolved in Riva, after demands for mercy for the South Tyrolean ‘activists’ (responsible for the bombings in the 1960ies) had been proposed; an issue, which can by no means be resolved by the entities. 87 Ferrara and Pasi, supra note 17, pp. 123, 124.

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CROSS-BORDER COOPERATION AS AN INDICATOR FOR INSTITUTIONAL EVOLUTION OF AUTONOMY: THE CASE OF TRENTINO-SOUTH TYROL competitors). The concrete perspective of EU membership and cooperation across the EU’s Eastern border as well as in the context of the PHARE and TACIS programs are therefore of extreme importance. In cases of post-conflict situations, CBC seems to offer a modern, flexible and thus very attractive tool for general reconstruction or economic improvement. Nevertheless, as shown, horizontal forms of cooperation across borders do not only require a favourable regional context (especially by cooperation of the States the entities belong to), but also a cooperative culture within the State, and, even more important, inside the cooperating entity. Where mutual trust and cooperation are lacking, a cross-border project can easily become dangerous to internal balances. South Tyrol can serve as an instructive example: trust had to be built up on both sides, with regard to the Italian State through the experience of cooperation (including legal controversies before the Italian Constitutional Court). A certain degree and experience in self-government of the sub-national entities can therefore be considered as a necessary condition for CBC. But trust (and cooperation) also had to be created within the autonomous entity itself, by means of specific rules of cohabitation. Above all, it had been the fear of (radical and unilateral) change of these rules by moving the decision-making level to a cross-border entity that created the opposition against the institutionalised project in the mid 1990ies. Another example is Northern Ireland, where cross-border cooperation was envisaged as an essential tool in the compromise found in the Good-Friday Agreement of 1998. Again, a frequent misunderstanding (or misinterpretation) of these forms of cooperation led to the fear of the Unionist community that they might only be a first step on the way to reunification of Ireland.88 The very difference, in scope and perception of CBC, in areas, where the trauma of ethnic-conflict has to be overcome, might be illustrated by the case of Germany: along the Dutch-German border, despite occupation during WW II, the development of CBC has not only begun very early, but has gone even so far to allow the establishment of institutionalised Euroregions as public-law entities;89 whereas on the Eastern borders of Germany the confidence-building process is not yet completed, making CBC a very sensitive issue (e.g. along the Czech border, where the mass deportation of Sudets had taken place).90

88

Cf. recently cross-border cooperation and consociational democracy in Northern Ireland J. McGarry, ‘Consociational Theory and the Good Friday Agreement’, European Yearbook of Minority Issues (2001/2) pp. 288 et seq. 89 See J. Scott, Dutch-German Euroregions: A Model for Transboundary Cooperation? (WSSA Papers, 1999), p. 83. 90 K. Gerner, The Evolving Political Role of Borders and Border Regions in Central Europe, (WSSA Papers, 1999), p. 107, and P. Ganster et al. (eds.), Borders and Border Regions in Europe and North America (State Univ. Press, San Diego, 1997). The same is true for South Eastern Europe, for instance with regard to cooperation involving Croatia and Serbia on one side, and the Entities of Bosnia and Herzegovina on the other.

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FRANCESCO PALERMO AND JENS WOELK Some scholars even state that Euroregions are merely an additional tool in a greater strategic game of economic expansion from West to East (especially on Germany’s Eastern borders) and highlight the ideological underpinning of many CBC activities in areas where an ethnic conflict had taken place, like, in particular, in (Trentino-)South Tyrol.91 They argue that institutionalised forms of CBC such as the project of an Euroregio ‘Tyrol’ only create dangers by changing the ethnic balances and therefore warn that behind a number of Euroregions there is a vision of a Europe based on ethnically homogeneous regions. A legal analysis can not give answers to these kind of questions. From a strictly legal perspective, the procedures and institutions of CBC are nothing else than empty boxes which have to be filled with concrete policies and cooperation programs which respond to a certain demand or help to overcome a lack of coordination created by a border in order to transform the periphery into a ‘contact area’, to the advantage of its inhabitants by improving its social and economic system. CBC must thus not be seen as a matter, nor as a policy, but as an instrument providing a (legal) procedure for the more effective solution of problems concerning different issues. It is for this reason that, from the structural prospective, the box of CBC still is (and will in future remain) made of the domestic constitutional provisions of the States, which is also confirmed by the reference made in international treaties on CBC to the national catalogues of competencies. But as it often happens, the material of the box does not only influence, but sometimes even determines its contents. As far as constitutional law of the States is concerned, the guarantee of fundamental rights can be used as an obstacle against unlawful ideological content and objectives of the cooperation. For this reason, it is particularly important to stress, that functional, effective forms of CBC can only work properly in a democratic context, in which the rule of law is established and human rights are effectively protected. Moreover, this seems to fit into a general tendency towards more functional oriented forms of governance. The allocation of powers and functions exclusively along ideological (or ethnic) lines has shown its weakness and is giving way to a system of distribution of powers which is determined by functional streams (economy, efficiency). Moreover, the overall tendency in governance and its organisation is the search for (more) efficiency, which can be best achieved by a more flexible and result oriented cooperation between (already existing) entities. This does not only explain phenomena like cooperative federalism (and regionalism), but also supranational forms of cooperation, e.g. the European Community. In the context of CBC, this supranational cooperation and integration by generating trust and confidence between the States proves to be a guarantee against fears of ‘revisionist activities’ which might endanger sovereignty. CBC, including its institutionalised forms, the Euroregions, does not constitute a new level of governance, but provides – additional − horizontal links by closer 91

Cf. in particular Luverà, supra note 6.

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CROSS-BORDER COOPERATION AS AN INDICATOR FOR INSTITUTIONAL EVOLUTION OF AUTONOMY: THE CASE OF TRENTINO-SOUTH TYROL interconnecting existing entities according to functional criteria, independently from ideological or ethnic affiliation or homogeneity. Their acceptance depends primarily on the concrete advantages for the citizens: thus effectiveness becomes the main evaluative criterion; their integration in the existing institutional frameworks as complementary elements is in obvious contrast with the (backward-minded) idea of (re-)building institutions exclusively along ethnic lines. 4.2. Mature Autonomy-Systems as a Precondition for CBC This paper argues that only mature autonomies or sub-national entities can establish modern and developed (functional) forms of CBC, because only stable systems are able and willing to cooperate not only with the neighbouring regions, but first and above all with the central authorities, which is the most important precondition for CBC. A certain degree of ‘institutional maturity’, a released climate of trust, mutual information and cooperation between the central State and its entities seem to be preconditions for CBC activities, given that the issue of borders still remains a quite sensitive one: States that see their sovereignty questioned by secessionist tendencies will hardly promote cooperation that create links across their borders. This is also true in cases where there is no friendly and cooperative relationship at State level. Thus, the importance of an overarching regional framework of State cooperation in which CBC of sub-national entities can be embedded. This result is confirmed by the South Tyrolean case which offers a proper ‘history’ of autonomy (with decades of experience) and can therefore be considered a mature system. But despite the autonomous system established and decades of peaceful coexistence, ethnicity and symbols still play a major role in South Tyrolean society. Improvements in individual areas are not only possible, they seem almost necessary in view of the growing international standards in this context – after all, the Autonomy Statute is nearly 30 years old.92 The process of European integration, the transfer of new powers in the prospective of a general decentralisation of the Italian State, the recent signs of more flexibility and ‘openness’ in the interpretation and application of some principles, and the new possibilities of cross-border cooperation seem to confirm the vision of autonomy as a dynamic process, not limited to restoration, defence and preservation of the status quo. The difficulties of establishing a Euroregion with Tyrol (soft cooperation first, followed by − futile − attempts of institutionalisation and an emphasis on functional cooperation − maybe institutionalised in the future?) illustrate the chances and the problems of CBC in a post-conflict situation. The experience in this case, but also in other areas, clearly demonstrates the importance of functional rather than ideological approaches to CBC, due to its character of being an instrument rather than an objective in itself. It also underlines the importance of a regional or supranational 92

Feiler, supra note 7, p. 35.

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FRANCESCO PALERMO AND JENS WOELK context of cooperation between the States, which functions as a kind of international umbrella under which CBC can be actively promoted. In the case of South Tyrol the process of European integration provided such a positive environment.

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AUTONOMY, PARTICIPATION AND MINORITY RIGHTS PARTICIPATION AND THE COUNCIL OF EUROPE’S FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES (FCNM) Alan Phillips1 1. INTRODUCTION The Framework Convention for the Protection of National Minorities is the most recent international standard on minorities and is the first legally binding multilateral instrument to protect minorities. It was drafted speedily in 1994 by the Council of Europe (CoE) and by the end of 2001 had been ratified by 34 States. It was an instrument to contribute to stability, democratic security and peace in Europe and considered important, inter alia, for judging compliance with accession criteria for the European Union.2 The FCNM has no reference to autonomy but some component elements of autonomy are covered under different articles of the Convention, particularly articles that relate to participation and culture. This paper highlights two themes, the way the FCNM formally protects and promotes the participation and cultural autonomy of national minorities and secondly the participative (and sometimes autonomous) methodology that the Advisory Committee (AC) has developed. The CoE failed to employ a participative methodology in the drafting of the Convention, its explanatory report or the rules of procedure, while the lack of adequate resources and anticipatory action has lead to delays in monitoring and public disclosure of the first Opinions. The paper does record the more recent success of Civil Society engagement, the importance of visits to States, the valuable

1

Alan Phillips is the UK independent Expert on the Advisory Committee. Today he is a human rights adviser, from 1982 to 1988 Deputy Director of the British Refugee Council and between 1989 and 2000 the Director of Minority Rights Group International. First Vice President of the Advisory Committee, FCNM. Although the author is Vice President this paper is a personal contribution and opinions expressed do not necessarily reflect the views of the Advisory Committee, which has a central role in monitoring the implementation of the FCNM. 2 See 1993 Copenhagen European Union Council’s final document.

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ALAN PHILLIPS precedents set by Finland and the constructive approach today of the CoE Committee of Ministers’ Deputies. By March 2002 only 11 Opinions of the Advisory Committee were in the public domain, consequently jurisprudence is at an early stage in interpreting the implementation of the FCNM. The Opinions on Denmark, Finland, Hungary and Romania are looked at for common themes on autonomy, the participation of minorities, and the particular needs of the Roma and sectors of minority society including Roma women. It identifies that autonomy can be a practical way of ensuring the effective participation of minorities in public service, which is a substantial problem in Europe. The paper shows that the process of engagement as well as the standard on participation in the FCNM are both essential in a genuinely democratic society. The Convention needs to be owned, valued and employed locally by many, if the participative rights of minorities are to be protected and promoted. Consequently the paper concludes with a set of recommendations reached by the Minority Rights Group and it minority partners on strengthening the FCNM and its processes of participation. 2. THE FRAMEWORK CONVENTION The Framework Convention for the Protection of National Minorities is the most recent international standard on minorities and is the first legally binding multilateral instrument to protect minorities. The Convention drew inspiration from the final document of the Conference on Security and Cooperation Copenhagen Human Dimension meeting (Document of 29 June 1990). It was also inspired by the Declaration of the Heads of State and Government of the Council of Europe (9 October 1993) and became a practical outcome of this meeting. The Convention came during an era of rapid ‘growth in the membership of the Council of Europe, following the demise of communism and the blossoming of new democracies in Central, Eastern and Southern Europe. It was set against the recent history of the terrible and bloody conflict in former Yugoslavia, concerns over widespread nationalism in some new democracies and the considerable potential for new or continuing violent conflicts, in which ethnic cleavages could be exploited. This was explicitly recognised in the Preamble of the Convention.3 It notes that ‘the upheavals of European history have shown that the protection of national minorities is essential to stability, democratic security and peace in this continent.’

It additionally emphasises the need for: • a pluralist and genuinely democratic society 3

See www.humanrights.coe/minorities for the full text of the Convention with its preamble, the Opinions, Comments and Resolutions decided by the CoM.

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PARTICIPATION AND THE COUNCIL OF EUROPE’S FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES (FCNM) • the creation of a climate of tolerance and dialogue • the realisation of a tolerant and prosperous Europe The Convention was drafted quickly in the first 10 months of 1994 and was open for signature on 1 February 1995. The Convention came into force in February 1998, three months after 12 states had ratified it. Although some believed that the Convention would attract only modest State support, the number of States party to the Convention grew quickly and by December 2001, 34 States had ratified the Convention. The Convention itself covers a wide range of issues including: • Choice of identity • Full and effective equality • Maintenance and development of culture and identity • Spirit of tolerance and intercultural dialogue • Freedom of assembly, association and expression • Manifesting religion • Freedom of expression and access to media • Use of minority language with authorities • Minority language names, signs and topographic indications • Education for tolerance and understanding cultures • Minority education establishments • Learning a minority language • Effective participation • Population proportions in areas • Minority organisations and contacts across boarders The explanatory Report, which was negotiated by the Committee of Ministers (CoM) notes that ‘In view of the range of different situations and problems to be resolved, a choice was made for a framework Convention which contains mostly programme-type provisions setting out objectives which the Parties undertake to pursue. These provisions, which will not be directly applicable, leave the States concerned a measure of discretion in the implementation of the objectives which they have undertaken to achieve, thus enabling them to take particular circumstances into account.’

The Convention contains no definition of the notion of National minority nor does it imply the recognition of collective rights. It was anticipated that the implementation of the principles set out in the FCNM would be through national legislation and appropriate government policies. Minority rights and minority protection can be highly controversial political issues, as was evident by the absence of any international standards for minority rights before 1990. (It took the UN Commission on Human Rights from 1978 to 307

ALAN PHILLIPS 1992 to draft a Declaration on the Rights of Persons belonging to National, or Ethnic, Religious and Linguistic minorities that was not legally binding). The issues continued to be controversial in the 1990s with States such as France and Turkey that not only denied the existence of minorities in their territories but also opposed in principle a Convention protecting National Minorities. Some believed that the Convention was valuable in newly emerging democracies but of far less significance in well established democracies. Many others were determined to show their stability and support for democratic security by ratifying the Convention speedily and in a little over four years three quarters of the member states of the Council of Europe have ratified this convention. 3. PARTICIPATION IN THE DEVELOPMENT OF THE CONVENTION A significant body of academic international lawyers were dissatisfied with the text. They had serious concerns over weakly worded articles that were open to many different interpretations by States and they mistrusted the emphasis on programme type provisions rather than a right’s based approach. Civil Society organisations, including minorities, objected to their lack of participation in the drafting of the Convention (if a State had enacted new legislation in a similar way it would have been in breach of Article 15 of the Convention on the Participation of National Minorities). The process was neither pluralist nor genuinely democratic and did little to create a climate of tolerance and dialogue. It should have come as no surprise that those civil society organisations4, that found out about the procedure, were sceptical about the Convention and that some distinguished international lawyers were unrestrained in their criticism.5 There was a similar lack of transparency and participation in the adoption of the Rules of Procedure of the Advisory Committee by the CoM (Resolution 97(10) 17 September 1997).6 These were debated and adopted behind closed doors. The Parliamentary Assembly had been consulted and had invited a number of ‘experts’ including academics, NGOs and representatives of minorities to attend and present papers at a special all day meeting of the Legal Affairs Committee in Paris. The Parliamentary Assembly adopted a set of proposals based on this consultation. However, its Rapporteur was unavailable on the day of the CoM meeting on 17 4

See G. Alfredsson, ‘A Frame with an Incomplete Painting: Comparison of the Framework Convention for the Protection of National Minorities with International Standards and Monitoring Procedures’, 7 International Journal on Minority and Group Rights (2000) pp. 291−304. 5 Other authors have to varying degrees critically assessed the FC. See, for example, F. Benoİt-Rohmer, The Minority Question in Europe. Texts and Commentary, (Strasbourg: Council of Europe Publishing, 1996); and G. Pentassuglia, ‘Minority Protection in International Law: From Standard-Setting to Implementation’, 68 Nordic Journal of International Law (1999), pp. 131–160. 6 This contrasts sharply with the inclusive and consultative processes adopted by the UN Working Group on the UN Declaration on the rights of . . . minorities between 1978 and 1991.

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PARTICIPATION AND THE COUNCIL OF EUROPE’S FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES (FCNM) September and although the Parliamentary proposals were circulated with other papers, they were not heard, debated or adopted by the CoM. The procedures adopted were heavily criticised, as they appeared to give the Advisory Committee a weak role7, heavily dependent on the CoM.8 4. PARTICIPATION AND THE FCNM TEXT The Advisory Committee’s formal role is to assist the Committee of Ministers in evaluating the adequacy of the measures taken by the Parties to give effect to the principles set out in this framework Convention. The Committee examines how the Convention is implemented in each Contracting Party (State) and an important part of the methodology is to review the implementation of each Article. In the context of participation Article 15 is central: ‘The Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them.’

When the Convention was being drawn up an Explanatory Report was also produced and on Article 15 it states: ‘This article requires Parties to create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them. It aims above all to encourage real equality between persons belonging to national minorities and those forming part of the majority.’

In order to create the necessary conditions for such participation by persons belonging to national minorities, Parties could promote – in the framework of their constitutional systems – inter alia the following measures: - consultation with these persons, by means of appropriate procedures and, in particular, through their representative institutions, when Parties are contemplating legislation or administrative measures likely to affect them directly; - involving these persons in the preparation, implementation and assessment of national and regional development plans and programmes likely to affect them directly; 7

Article 26 refers to the role of the Advisory Committee. Article 26: In evaluating the adequacy of the measures taken by the Parties to give effect to the principles set out in this framework Convention the Committee of Ministers shall be assisted by an advisory committee, the members of which shall have recognised expertise in the field of the protection of national minorities. 8 Article 24 paragraph 1 states that ‘[t]he Committee of Ministers of the Council of Europe shall monitor the implementation of this framework Convention by the Contracting Parties’.

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undertaking studies, in conjunction with these persons, to assess the possible impact on them of projected development activities; effective participation of persons belonging to national minorities in the decision-making processes and elected bodies both at national and local levels; decentralised or local forms of government.9

It can be seen that there is no specific reference to the word autonomy. However, articles of the FCNM do protect persons belonging to national minorities when they join together to express and promote their culture. Article 5 is broad ranging and in this ‘Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.’

Several of the Opinions concentrate on the absence of conditions for the Roma to maintain and develop their culture and although the Advisory Committee was in principle positive about the measures in Hungary for local self-government of minorities, in practice this had been problematic, especially for the Roma, as it depended on local governments allocating resources but these were often in adequate. Article 9 (3) refers to ‘The Parties . . . shall ensure, as far as possible . . . that persons belonging to national minorities are granted the possibility of creating and using their own media.’

In the Opinions of Finland, Denmark, Hungary and Romania the Advisory Committee was able to use this positive language to express opinions on the uneven allocation of resources to different minorities including the Roma and smaller minorities, while expressing concerns about the duration and timing of radio and TV broadcasting. Article 13(1) refers to ‘within the framework of their educational systems, the Parties shall recognise that persons belonging to a national minority have the right to set up and manage their own private education and training establishments.’

Which is placed in a limiting context by 13(2) : ‘The exercise of this right shall not entail any financial obligations for the Parties.’

9

See Framework Convention for the Protection of National Minorities collected texts, 2nd edition Treaties and Reports, August 2001, Council of Europe Publishing.

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PARTICIPATION AND THE COUNCIL OF EUROPE’S FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES (FCNM) The language is essentially protective and the failure to suggest resource allocation, even for areas traditionally inhabited by substantial numbers of national minorities, gave rise to no specific opinions on the four States in this area. Article 17(2) states that: ‘The Parties undertake not to interfere with the right of persons belonging to national minorities to participate in the activities of non-governmental organisations, both at the national and international organisations.’

And should be read alongside Article 7 which states: ‘The Parties shall ensure respect for the right of every person belonging to a national minority to freedom of peaceful assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion.’

The Opinions of the Advisory Committee here were linked to visa regimes as once again there was no obligation on States to provide resources for non-governmental organisations of minorities. 4.1 Opinions of the Advisory Committee on Aspects of Participation In the Opinions on the implementation of the Convention to date, under Article 15 the Advisory Committee has found a number of issues on which to comment.10 The early Opinions, and state Comments on Denmark and Finland have been particularly interesting. The Advisory Committee considered that institutions such as the home rule arrangements for Greenland and the Faroe Islands or the autonomy of the Province of Åland contribute to the effective participation of the individuals concerned in cultural, social and economic life and in public affairs.11 In the Danish Opinion it noted: ‘However, the personal scope of application of the Framework Convention in Denmark, limited to the German minority in Southern Jutland has not been satisfactorily addressed. In particular, persons belonging to other groups with long historic ties to Denmark such as FarOese and Greenlanders appear to have been excluded a priori from protection under the Framework Convention. Similarly, despite historic presence of Roma in Denmark, they appear to have been a priori excluded from the protection of the Convention. This approach is not compatible with the Framework Convention. Furthermore, the Advisory Committee considers a limited territorial application, leading to the a priori exclusion of certain groups, not to be compatible with the Framework Convention. 10

For a fuller critique of all the Opinions until the end of 2001 see Rainer Hofmann, President of The Advisory Committee in German Yearbook of International Law (June 2002). 11 Ibid., ii para. 36 of the opinion on Denmark and para. 47 of the opinion on Finland.

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ALAN PHILLIPS The Advisory Committee therefore considers that Denmark should, in consultation with those concerned, examine the application of the 12 Framework Convention.’

The Danish Government in its Comment offered a forthright reply13 concluding: ‘In view of the foregoing, it is the fundamental opinion of the Danish Government that the international obligations that Denmark has assumed according to the Framework Convention only relate to the German minority in South Jutland and do not apply to any wider extent. The Danish Government is thus also of the opinion – which is fully shared by the Faroese and Greenland home rule authorities - that the provisions of the Convention do not apply in relation to the populations of the Faroe Islands and Greenland who, as a result of the home rule arrangements, are not regarded as minorities in the Danish Realm.’

In contrast, the Finnish government responded in detail to the Opinion of the Advisory Committee on the scope of application of the Convention to the Sami, Finns on the Aland Islands and Russians14. In this context it must be remembered that minorities do in fact emerge, and the right to self-identification is important for persons constituting a minority. However, the question of whether there are such persons within the territory of a given State to which the Framework Convention is applicable, could also be discussed within the monitoring mechanism of the Convention. The Advisory Committee’s Opinion shows that it was not aware of widespread discussion on the applicability of the FCNM among potential beneficiaries in Denmark nor was the Council of Europe invited to hold discussions with Greenlanders or Faroe Islanders on their views, before the Convention was ratified. It may be that each and every person belonging to these communities may not wish to be protected by the FCNM and the home rule act safeguards the needs of all individuals and all communities, but civil society as well as political leaders should have the opportunity to participate in an open discussion on this. The situation of Greenlanders in Copenhagen, Germans outside South Jutland but in the Danish Realm, or other small minorities may not, de facto, represent the most serious issue for those concerned about the protection of national minorities in Europe.15 However if the provisions of the Convention are to be implemented in good faith in Denmark and elsewhere in Europe, there should not be double standards or arbitrary distinctions made by the a priori and permanent exclusion of certain minority groups from the Convention’s protection. The preamble to the Convention shows

12

See para. 39 of the Opinion on Denmark. See Comment of the Government of Denmark. 14 See Comment of the Government of Finland. 15 The internationally acclaimed novel by Peter Hoeg ‘Miss Smilla’s Feeling for Snow’ provides a vivid description of a marginalized Greenlander community in Copenhagen. 13

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PARTICIPATION AND THE COUNCIL OF EUROPE’S FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES (FCNM) that its purposes are multifaceted, they go well beyond any arbitrary limitation in its purposes to those with historical needs for stability, democratic security and peace. In its other Opinions the Advisory Committee strongly welcomed legislative arrangements which give participation rights through constitutionally guaranteed representation in Parliament,16 but criticized Hungary for not having implemented its own pertinent domestic standards that allow for Parliamentary seats for minorities.17 On the other hand, it concluded that the system of minority self-government existing in Hungary allows and indeed enhances the participation of national minorities in public life notwithstanding the persistence of specific problems18. These problems include the lack of adequate funding and the dependency on the local authority for cooperation, which has been a significant problem for Roma self-governance. The Advisory Committee expressed the wish that the administrative reform, then under way in Slovakia, would be designed in such a way as to contribute to the effective participation of persons belonging to national minorities in public affairs.19 The Advisory Committee was concerned that in Romania20 there was not full and effective participation of the Roma and Hungarians, as public officials in the police, army, justice and education. There were similar concerns for the situation of the Roma and Serbs in Croatia where this also extended to the media, health care and public service broadcasting.21 In Istria local self-government evidently helped improve the situation for the Italian minority. In many Opinions, the Advisory Committee expressed its concern about the shortcomings that remain for the effective participation of the Roma in social and economic life. It has recorded the negative impact that these shortcomings have on the social and economic living conditions of this minority in general and of Roma women in particular.22 Most State Reports failed to provide good information on the social and economic participation of minorities, particularly of Roma. During visits some States sought to justify this by referring to historic discrimination and the concern that every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such. The Advisory Committee has taken the view that it is important and scientifically possible to compile disaggregated data by ethnicity, age, gender and area without identifying individuals.

16

See para. 65 of the opinion on Romania and para. 60 of the opinion on Croatia. See paras. 48 and 49 of the opinion on Hungary. 18 See paras. 46−47, 50−52 of the opinion on Hungary. 19 See para. 48 of the opinion on Slovakia. 20 See para. 71 of the opinion on Romania. 21 See paras. 54−57 of the opinion on Croatia. 22 See para. 65 of the opinion on Croatia, para. 48 of the opinion on Finland, para. 54 of the opinion on Hungary, para. 69 of the opinion on Romania, and para. 47 of the opinion on Slovakia. 17

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ALAN PHILLIPS 5. PROCESS 5.1. Authorisation to Seek Information The rules of monitoring adopted by the Committee of Ministers were particularly limiting on the ways in which the Advisory Committee could collect information. 23 The Advisory Committee did not seek to challenge these restrictive rules but sought a number of additional, generic mandates over time from the Committee of Ministers. In May 1999 it took note of the intention of the Advisory Committee to invite a wide range of organisations to submit information and in May 2002 the CoM authorised the Advisory Committee to meet NGOs during visits. In between the CoM had welcomed invitations from a series of States to the Advisory Committee to pay a visit. The Advisory Committee has sought information from a wide variety of sources including those in the Council of Europe, The European Union, Reports of the Organisation for Security and Cooperation in Europe, and the United Nations, including its treaty monitoring bodies. At an early stage the Committee receives around 100 different documents to analyse from a host of reliable sources. 6. VISITS TO STATES The custom and practice has developed of States Parties inviting the AC to pay a visit, which has been a very important achievement of the AC and the CoM. Although this was not referred to in resolution 97(10) of CoM through a subtle approach of the Committee seeking invitations alongside lobbying by NGOs, each and every State has invited the Advisory Committee when a visit has been thought to be valuable. These visits have become crucial in the operation of the Committee and have transformed the methodology and the process of engagement of government, civil society, as well as national minorities.24 It has helped to ensure that the Convention and its implementation could become a process that is used and owned locally. The visits have not only opened up many new sources of information and understanding and led to a much greater in depth understanding of the situation of national minorities, but also they have brought together different local parties into dialogue with the Advisory Committee. Visits have also been paid to minority settlements, sometimes on the fringes of the capital sometimes many hours away. No other treaty monitoring body has enjoyed such discussions and meetings.

23

Ibid., vii FCNM Collected Texts. The prospect of paying visits to states by the AC to see how the FCNM was being implemented was proposed by the author at the second meeting but rejected immediately by the AC as being outside the rules agreed by the CoM. 24

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PARTICIPATION AND THE COUNCIL OF EUROPE’S FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES (FCNM) 7. OWNERSHIP OF THE CONVENTION If international law is to be effectively implemented, like domestic law, it needs both political and moral support for its values and knowledge of it substance. Mechanisms of monitoring are important, but they need to be supported by a genuine commitment to make them work. Much international human rights law fails as it is treated as something that States wish to be seen to support in international fora but domestically it may be treated as a State secret, an external imposition and unnecessary to implement effectively. Monitoring can be seen as a nuisance or even a threat to both politicians and officials, as they see their actions criticised. Much work has been done by some NGOs, in particular the MRG project, to address this approach and to encourage a constructive ownership of the Convention by the key partners. 7.1. Governments Since the Convention has been recently adopted and States are well aware of the major social and violent conflict that has developed around certain inter ethnic tensions the importance of the issue is well understood. Although some states would prefer to put aside national minority issues, it is clear that the proper protection of national minorities is crucial for closer cooperation and accession agreements with the European Union under the 1993 Copenhagen criteria for EU accession. Consequently there is an economic incentive in some States to ensure that they are seen to be implementing the FCNM. This has been reinforced by States that strongly support the FCNM and consequently there is a strong motivation to take the monitoring seriously and to be seen to help the Advisory Committee in its work. All 34 States (there are 43 members of the COE) that have ratified the FCNM did so voluntarily and for some it was a condition of membership of the Council of Europe. Sadly in the EU Belgium, France, Luxembourg, Netherlands and Greece failed to ratify the FCNM by 2002. Most states have been diligent and have provided their Reports within three months of the due date and only a small number have allowed more than a year to lapse. The large majority of reports are serious attempts to comply with what was requested, some states have actively involved minorities in the reporting and the large majority of States have been helpful in answering the questionnaire for further information in a reasonable time. All States, where a visit was needed, have invited the Advisory Committee and this has become custom and practice. States organise high-level meetings and facilitate the visits in a most constructive way. Furthermore a new important trend is being set with States, inviting the Advisory Committee to come back and hold a local meeting to present its Opinion to a meeting of Government Officials and national minorities in capitals, once the Resolution of the CoM has been adopted. These meetings provide a new opportunity for promoting a continuous dialogue and for continuing action. 315

ALAN PHILLIPS 7.2. Civil Society One of the most important aspects of this Convention has been the way that civil society organisations, including national minorities, have used the FCNM. Intergovernmental organisations including MRGI, IHF, ECMI have played a key role in publicising and promoting the convention internationally and through local partners. This includes: • Lobbying for the ratification of the FCNM. • Local and Europe wide training workshops on the Convention. • Translating the Convention. • The publication of a training manual in many languages. • Organisation of local workshops and Conferences to publicise the Convention • Promoting the participation of minorities in the drafting of the State Report. • Establishing projects locally to submit alternative reports to the AC. • Encouraging specialist NGOs to present evidence on topics to the AC. • Meeting the AC and helping set the agenda during visits. • Providing extra data identified as important by the AC. • Lobbying governments to publish Opinions and Comments early. • Attending follow up meetings to help implement the findings. • Organising working groups to promote the findings in Opinions locally. There have been both individual initiatives and collective approaches by consortia of NGOs in many countries of Europe. These have occurred in over 20 countries and the fruits of its work can be seen on the internet, where a range of alternative NGO reports on the implementation of the Convention are published.25 Some of the most successful initiatives have been in Finland, Croatia and Hungary, where there has been continuing dialogue and some of the best precedents set. In April 2002 a meeting was organised in Budapest by Minority Rights Group International and many of its European minority partner organisations to discuss the operation of the FCNM. Many positive comments emerged on the way the process had advanced minority rights and a set of recommendations that emerged from these deliberations are included at the end of this paper. Academics too have played their part in offering reviews and criticisms of the Convention and can continue to play an important role in reviewing the Opinions for consistency and for the way they have taken forward international law and its application.

25

See Greek Helsinki Monitor on <www.greekhelsinki.gr/english/index-countries/ghmgreece.html> visited on 15 April 2004.

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PARTICIPATION AND THE COUNCIL OF EUROPE’S FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES (FCNM) 8. COUNCIL OF EUROPE The Council of Europe has had a mixed response in supporting the AC. Some parts have been highly supportive while others have been less diligent. Institutionally it has not anticipated the needs required to do a good job and the lack of effective resources and a failure to anticipate issues has lead to Opinions, Comments and Resolutions taking 31 months to be published. This does not encourage the participative process of dialogue and action. The staff in the Advisory Committee Secretariat are capable and dedicated, but the structure depends on having the resources of a body like the Convention for the Prevention of Torture, if the issue of minority protection is to be given an equivalent status. There could have been a synergy between the ECRI, The Language Charter Secretariat and the FCNM Secretariat but this challenge still remains. No additional resources have been added, since a very modest addition two years ago after a major growth in the number of ratifications, no funds for visits have been allocated and two meetings a year have been cancelled to pay for these crucial visits. This crisis has been highlighted in annual reports of the Advisory Committee. In contrast, the most important Convention for protecting minority rights, preventing conflicts and promoting good democratic participation has been very well supported by states and by national minorities. 8.1. Resolutions Although the Committee of Ministers is the final judge on the performance of a State in implementing the Framework Convention, by emerging custom and practice, the Committee of Ministers has accepted almost all of the Concluding Remarks as contained in the Opinions in their own agreed Resolutions. Today the Conclusions in these Resolutions are based on a rephrasing of the Opinion.26 Each resolution has its own conclusion specifically referring to the Advisory Committee Opinion with the following language: ‘Recommends that (the named State) take appropriate account of the conclusions set out in section 1 above together with the various comments in the Advisory Committee’s opinion.’

This acceptance of the Advisory Committee’s advice follows a set of precedents where the Committee of Ministers accepted the recommendation of the Advisory Committee on the structure of the State report27, it accepted the request of the Advisory Committee to seek information from a wide variety of sources28and, crucially, it accepted the invitation of States to allow the Advisory Committee to pay 26

This can be seen by contrasting the Opinions, Comments and Resolutions. Ibid., ii Decision of CoM 30 September 1998. 28 Ibid., ii Decision of CoM 19−20 May 1999 and CoM 3 May 2000. 27

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ALAN PHILLIPS visits.29 Today the Advisory Committee seeks invitations from States to pay a visit and to date, no State has failed to offer an invitation. By avoiding confrontation, while adhering to its principles consistently, by proving its ability to manage issues competently and by engaging States collectively through the CoM as a counter balance to the pressure that can come from individual governments, the Advisory Committee has achieved significant autonomy in the last four years. It may be that this methodology has a wider applicability. 8.2. Analysis to Action The new challenge is to ensure that the implementation of the Convention can grow in strength and that the Opinions of the Advisory Committee and the Resolutions of the Committee of Ministers are part of a continuing debate and a focus for action. Consequently the CoM invites States, in accordance with Resolution (97) 10: a. to continue the dialogue in progress with the Advisory Committee; b. to keep the Advisory Committee regularly informed of the measures it has taken in response to the conclusions and recommendations. This resolution extends the degree of autonomy of the AC. Finland invited the President of the AC to go to Helsinki in February 2002 to take part in a one day seminar to discuss with the Government, minorities and civil society the issues contained in the Opinion, Comment and Resolution. In March, Croatia invited the Vice President of the AC to go to Zagreb and participate in a similar seminar and additionally hold separate meetings with officials and ministers. This may also become custom and practice, where the State is showing a willingness to be constructive. 9. CONCLUSIONS There are a number of conclusions that can be drawn for participation and autonomy arrangements. It has been clear how important the process of the engagement of civil society and many prime actors has been in strengthening standards and practice. This needs to go beyond the political elite within national minorities to ensure that gains are promoted, owned and valued widely in minority communities. Seeking progress constantly over time and often making small advances has led to the CoM giving a considerable degree of autonomy and delegated authority to the Advisory Committee. This has made successful progress in transforming potentially weak implementation and monitoring mechanisms into useful tools for minority rights. In order to implement the Convention more effectively greater emphasis is needed on social and economic participation and measures to ensure that sufficient

29

The precedent was set first by Finland and confirmed by the practice in Hungary.

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PARTICIPATION AND THE COUNCIL OF EUROPE’S FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES (FCNM) funds and resources are available to develop agreements and policies into good practice. Political participation should reflect the need to establish processes, to involve different sectors of minority communities including men, women, young, old, different social groups, different geographical groups, etc. in recognising similarities but also differences in identities. Transparency needs to be encouraged and political elitism avoided to ensure the effective participation of persons belonging to National Minorities. Financial issues have also emerged in the implementation of cultural autonomy. Broadcasting minority programmes on radio and T.V., publishing in minority languages, education institutions run by minorities, and associations of minorities all require adequate resources to transform the protection of minorities culture on paper to the promotion of minority cultures in practice. More specifically with geographical autonomy, there is also a need to ensure that state commitments to autonomy in one specific area does not neglect the rights of minorities elsewhere in the country. Additionally, there may be new numerical minorities within any autonomous area, whose rights should also be respected. This is important for confidence building between communities and shows that no community should be disadvantaged or privileged, wherever they may be. Local autonomies are one practical way of ensuring the effective participation of minorities in public service, including local government, the police, the rule of law, education, health care amongst other issues which remain a problem in many European States today. ANNEX 1. RECOMMENDATIONS ON FCNM FROM MINORITY RIGHTS GROUP 1. All States should ratify the FCNM and, pending the removal of legal constraints, should seek to implement the principles of the FCNM in practice. States should continue to develop the FCNM’s scope of application, seeking to protect all established minorities with the Convention. 2. State Reports and monitoring require some changes, with a greater focus on the implementation of programmes. The provision of good quality, up-to-date data on social and economic issues, that is disaggregated by age and gender, and reflects geographical differences, is essential. 3. All States should be pressed to report on time and the Advisory Committee’s Opinions should be published within 12 months of the submission of State Reports. 4. States should involve minorities more actively in the reporting and implementation of the FCNM. Joint task groups should be set up around problem areas to encourage minority participation and agreed responses. 319

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5. States nominating new candidates for the AC should ensure that their procedures are consultative and transparent, and that a balance of capable, Independent Experts is achieved. 6. States should initiate a programme to raise awareness of minority rights and the FCNM. This should include the translation into key languages of the text and Explanatory Report of the FCNM, Opinions, Comments and Resolutions, and these should be widely disseminated. 7. The Committee of Ministers (CoM) should take great care to follow the AC’s Conclusions in its own Resolutions, and strongly resist pressure from governments to weaken any criticism. It should be more transparent in its work on the FCNM. 8. Each year the CoM should review the situation in States where non-compliance with the FCNM has been identified. On key issues States should present progress reports to the AC and the CoM. 9. As a priority, the CoM should provide more resources for the AC, for speedy and dynamic monitoring, and to promote effective implementation of the CoM’s Resolutions. This would include follow-up visits and advice, and dialogue with States and civil society on problematic issues between reporting cycles. 10. The CoE should establish an institution-wide strategy to link all of its work on minorities to create synergies and encouragement for the whole of the CoE to assist in implementing the CoM’s Resolutions. The CoE, EU, OSCE and UN should work together in a coordinated and complementary way for minority protection across Europe.

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AUTONOMY AND THE EFFECTIVE PARTICIPATION OF MINORITIES IN PUBLIC LIFE: DEVELOPMENTS IN THE OSCE John Packer1 1. INTRODUCTION The Organization for Security and Co-operation in Europe (OSCE)2 is a panEuropean ‘soft security’ (i.e. without military assets) body composed of 55 participating States spanning the Northern hemisphere, with 10 other States accepted as ‘partners for co-operation’.3 On the basis of its twin theses of comprehensive security and co-operative security, i.e. that security is multi-dimensional and a matter of interdependence, the OSCE has evolved a modest but growing interest in forms of autonomy and, more generally, matters of participation in public life. This is especially so from the perspective of respecting and accommodating national minorities. Security and stability within and among States is not so much a matter of ending conflict – which, after all, is natural insofar as humans have differing situations, needs and desires – as it is a matter of developing arrangements, building institutions and essentially supporting processes which allow such conflicts (or differences of opinions) to be voiced, addressed and resolved. Process-oriented solutions are, therefore, important. Allowing voice, ensuring fair treatment and ultimately providing maximum accommodation to the variety of interests within any society entails careful and thoughtful attention to political processes. Evidently, people do not feel secure, and will not long suffer such situations, when their interests and concerns are not heard, treated fairly or accommodated to the extent compatible with the equal treatment and accommodation of others. If everyone feels that their interests are vital to them, and if the equal dignity of everyone is a fundamentally shared value, then simple majority decision-making appears arbitrary and unsatisfactory for persons belonging to minorities. This is particularly so when the subject-matter upon which majority decision-making is made affects especially or only minorities. In such a case, the exclusion of minorities from the decision-making process, or their systemic marginalisation, hardly inspires their confidence. Indeed, it invites discord, contention, and conflict which may cause instability and insecurity. 1 Director, Office of the OSCE High Commissioner on National Minorities. The views expressed in this chapter are those of the author alone, and are not necessarily shared by either the OSCE or the High Commissioner. 2 For the background and principal development of the organization through the end of the Cold War, see A. Bloed (ed.), The Conference on Security and Co-operation in Europe; Analysis and Basic Documents, 1972-1993 (Kluwer Academic Publishers, The Hague, 1993). 3 For the current membership, structure and activities of the OSCE, see <www.osce.org>.

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JOHN PACKER This chapter provides a summary of developments in the OSCE regarding ‘autonomy’ (expressly or implicitly) and the effective participation of minorities in public life. While some reference is made to State practice and the practice of OSCE institutions, the focus is on concepts and standards adopted by the participating States. Some conclusions are drawn. 2. AUTONOMY WITHIN THE OSCE Within the OSCE, ‘autonomy’ is generally associated with challenges to the State. Contemporary cases include situations in Ukraine (Crimea), Georgia (Abkhazia, Ajaria, South Ossetia), Moldova (Gaugazia, Taraclia, Transdniestria), Serbia and Montenegro (Kosovo and Vojvodina) – not to mention places like the Basque country in Spain or Northern Ireland in the United Kingdom. These are not models of stability and security. Not surprisingly, therefore, there is considerable reticence, if not plain opposition, in a number of States to countenance autonomous arrangements as positive forms of governance. And still this has been pursued recently in various forms, both East and West, in such different situations as Corsica in France and in the Former Yugoslav Republic of Macedonia (FYROM). To be sure, there are several successful examples of autonomous administrations within OSCE States. Although having arisen out of violent situations, which demanded international attention, two famous examples of successful territorial autonomies are those of the Åland Islands in Finland4 (a unitary State) and South Tyrol in Italy (a unitary State composed of regions).5 There are also well-established autonomous regions in the Russian Federation and Canada – leaving aside the possibility to consider the main federal units essentially as autonomous regions. Examples of functional autonomies are more difficult to find, but prior to the separation of Church and State it was common in Europe to have separate regimes relating to certain subject matter applicable differentially for Catholics, Protestants and Jews. Today, there are aboriginal regimes in Canada applicable even to jurisdiction over the administration of justice.6 Hungary has adopted a most interesting mixture of territorial and functional autonomies with a view to achieving the ‘cultural autonomy’ of national and ethnic minorities.7 Clearly, these are all attempts to accommodate the varying desires and needs of different groups within the same State. 4

See M. Suksi, ‘The Åland Islands in Finland’ in Local self-government, territorial integrity and protection of minorities, Proceedings of the UniDem Seminar organised in Lausanne on 25−27 April 1996 in co-operation with the Swiss Institute of Comparative Law (European Commission for Democracy through Law, Council of Europe Publishing, Strasbourg, 1996), pp. 20−50. 5 See S. Bartole, ‘The Situation in Italy’ in ibid., pp. 51−60. 6 See Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide (Canada Communications Group, Ottawa, 1996). 7 See Act LXXVII of 1993 on the Rights of National and Ethnic Minorities, adopted by the Hungarian National Assembly on 7 July 1993.

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AUTONOMY AND THE EFFECTIVE PARTICIPATION OF MINORITIES IN PUBLIC LIFE: DEVELOPMENTS IN THE OSCE At the level of the OSCE per se, the term ‘autonomy’ hardly appears in any document. Still, the commitment of participating States to democratic governance with respect for minorities and their rights has led to the consideration of forms of autonomy. This has taken place both expressly and implicitly in the evolving practice, including the development of ground-breaking ‘soft law’ standards and in State practice relating to the effective participation of national minorities in public affairs. In their commitment to international law, OSCE States accept that the internal political structure of the State is essentially a reserved domain of sovereign jurisdiction. At the same time, OSCE States are committed to democratic governance in general (see infra). More specifically, international human rights standards prescribe that ‘the will of the people shall be the basis of authority of government’.8 Further, the method for determining that general ‘will of the people’ is also prescribed: universal suffrage.9 In Europe, a somewhat similar, although less exacting, articulation is found in Article 3 of Protocol No. 1 to the European Convention on Human Rights: ‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’. Of course, these expressed standards relating to government must be read in conjunction with the matrix of other human rights, which contribute to the democratic nature of the organization and functioning of the State. Still, none of these standards foresees a particular political structure for the State. Rather, how the international legal obligations are to be accommodated within the political structure of the State remains an open question: e.g., whether it is through a unitary or federal structure, whether there is greater or lesser centralization of authority, etc. In short, no standard of international law expressly stipulates a right to ‘autonomy’. In the context of the OSCE, consensus on democracy was reached at the end of the Cold War and found expression in the Charter of Paris for a New Europe, signed on 21 November 1990 by the Heads of State and Government of the then 34 OSCE participating States.10 Under its first heading, entitled ‘A New Era of Democracy, Peace and Unity’, the participating States expressed their ‘steadfast commitment to democracy based on human rights and fundamental freedoms’ and undertook ‘to build, consolidate and strengthen democracy as the only system of government of our nations’. More precisely, the Charter of Paris stipulates that ‘[d]emocratic government is based on the will of the people, expressed regularly through free and fair elections’ and that the character of democracy is ‘representative and pluralist’. It is important to note that the ideas of human rights and pluralism were already understood by OSCE States as including the rights of persons belonging to national 8

See Article 21(3) of the Universal Declaration of Human Rights (UDHR). See Article 21 of the UDHR and Article 25 of the International Covenant on Civil and Political Rights (ICCPR). 10 For the full text of the Charter, see <www.osce.org/docs/english/1990-1999/summits/ paris90e.htm>; the text is also reproduced in 11 HRLJ (1990), p. 379 et seq. 9

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JOHN PACKER minorities, as agreed at the June 1990 Copenhagen Meeting of the Conference on the Human Dimension.11 From the OSCE commitment to democratic government based on human rights including the rights of persons belonging to national minorities, a preference for decentralization of government may be derived.12 This does not mean a preference for ‘autonomy’ per se; indeed, the term ‘autonomy’ is mentioned expressly in only one OSCE experts’ report. However, if the essence of autonomy is ‘a right for the group to decide its own affairs’, then the decentralisation of government can achieve in effect the same end.13 With this in mind, three passages of OSCE documents are of special interest – one adopted by representatives of the participating States, one adopted by representatives of participating States at the conclusion of a meeting of experts, and one agreed on by experts in the context of an OSCE meeting held with the participation of governmental representatives and following an agenda set by the participating States. All three passages refer especially to the interests of persons belonging to national minorities. The most general passage is found in the report of a Seminar of Experts on Democratic Institutions, which was held in Oslo in November 1991, pursuant to part II of the Supplementary Document to the Charter of Paris for a New Europe. Specifically, the experts endorsed decentralization as useful, especially in response to the needs of national minorities, in the following terms: ‘In the context of constitutional reform, reference was made to the utility of vertical decentralization and division of the functions of government on a federal, regional and local basis for a wide range of purposes. Numerous forms were available to take account of historical, regional, linguistic or ethnic distinctions. Administrative decentralization, development of governmental functions on a regional basis, and reinforcement and reform of local government institutions might in varying ways respond to the needs of groups, including national minorities.’14

In relation to the rights of persons belonging to national minorities, the participating States have recognized in paragraph 35 of the 1990 Copenhagen Document the following: 11

See part I (paras. 6–8) and part IV (paras. 30 – 39) of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE adopted on 29 June 1990 (hereafter the Copenhagen Document). For the full text of the Copenhagen Document, see <www.osce.org/docs/english/1990-1999/hd/cope90e.htm>; the text is also reproduced in 15 HRLJ (1990) p. 232 et seq. 12 For this argument together with a review of relevant OSCE mechanisms, see J. Packer, ‘The OSCE and International Guarantees of Local Self-Government’, in Local selfgovernment, territorial integrity and protection of minorities, supra note 4, pp. 250–272. 13 G. Gilbert, ‘Autonomy and Minority Groups: A Right in International Law?’, 35:2 Cornell International Law Journal (2002) p. 342. 14 Report to the CSCE Council from the CSCE Seminar of Experts on Democratic Institutions, Oslo, 15 November 1991, reproduced in A. Bloed (ed.), supra note 2, pp. 631– 644.

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AUTONOMY AND THE EFFECTIVE PARTICIPATION OF MINORITIES IN PUBLIC LIFE: DEVELOPMENTS IN THE OSCE The participating States will respect the right of persons belonging to national minorities to effective participation in public life, including participation in the affairs relating to the protection and promotion of the identity of such minorities. The participating States note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned. The phrase ‘autonomous administrations’ is not defined in the document, i.e. whether it may apply territorially or apply functionally to specified subject-matter jurisdiction. Nor is it stipulated in terms of a right. Nevertheless, the phrase must be presumed to have some meaning. By its location in the document, and from the general context of its reference, it would seem to mean some division of powers which is distinct from symmetrical devolution within a unitary State to the regional or municipal levels of administration as well as from the symmetrical division within a federal State between sub-State units and central authorities. In other words, it seems to imply some special division on an asymmetrical basis with the intention of responding to the peculiar needs or circumstances of a group of persons whether territorially concentrated or dispersed. Where these needs or circumstances are shared by all (or most) within a defined territory, the appropriate response would be territorial autonomy. Where the needs or circumstances are shared by all (or most) persons belonging to a group dispersed throughout the territory of the State, the appropriate response may be autonomy for that group in relation to specified subject matter, i.e. so-called personal or functional autonomy. In a subsequent Meeting of Experts on National Minorities held in Geneva in July 1991 pursuant also to part II of the Supplementary Document to the Charter of Paris for a New Europe and with the expressed intention of considering ‘new measures aimed at improving the implementation of [OSCE] commitments’, the representatives of the participating States adopted the Report of the Geneva Meeting of Experts on National Minorities.15 In part IV of the Report, the participating States noted with interest, ‘That positive results have been obtained by some of them in an appropriate democratic manner by, inter alia: – local and autonomous administration, as well as autonomy on a territorial basis, including the existence of consultative, legislative and executive bodies chosen through free and periodic elections;

15

Report of the CSCE Meeting of Experts on National Minorities, Geneva, 19 July 1991, reproduced in: A. Bloed (ed.), supra note 2, pp. 593–604; and 12 HRLJ (1991), pp. 332 et seq.

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JOHN PACKER self-administration by a national minority of aspects concerning its identity in situations where autonomy on a territorial basis does not apply; 16

− decentralized or local forms of government.’

As such, the participating States recognized the positive utility of not only decentralization and local forms of government in general, but specifically territorial and functional autonomy arrangements. Still, this did not amount to a specific preference for autonomy arrangements. Some months later, the participating States adopted the Document of the Moscow Meeting of the Conference on the Human Dimension.17 At the conclusion of the meeting, the delegation of Hungary registered an interpretative statement in which it argued as follows: ‘The Charter of Paris for a New Europe clearly emphasizes the need for increased co-operation and better protection of national minorities and warns us that although the threat of conflict in Europe has diminished, other dangers threaten the stability of our societies . . . In view of the aforementioned reasons Hungary would reiterate its position that the right of peoples to self-determination should be exercised in accordance with the principles of the Helsinki Final Act as well as with the precept enshrined in the Charter of Paris for a New Europe, taking into account the protection of minority rights . . . appropriate forms of self-government as well as their actual exercise would constitute an effective instrument to ensure national minorities the protection and promotion of their identity . . .’.

As such, Hungary advocated ‘forms of self-government’ (i.e. autonomy arrangements) essentially as a means of protecting minorities. Interest in and possible use of forms of autonomy to accommodate varying demands has been tempered within the OSCE region by fears that they may weaken the State and lead to secession. At the same time, autonomy arrangements have been advanced as one meaningful way of accommodating differing desires/needs short of secession. In this respect, autonomy arrangements sit uneasily in relation to the right to self-determination: if a group might seek to secede as a matter of (external) selfdetermination, then the same group’s demand for autonomy as a kind of ‘internal self-determination’ might be discomforting to the central authorities.18 But much depends on the particularities of any situation. In principle, autonomy may be viewed merely as maximizing the application of the democratic principle short of secession. In this sense, its instrumental value in accommodating diversity and 16

Ibid. Bloed, p. 598. Adopted on 3 October 1991, the full text of the Document is available at <www.osce.org/docs/english/1990-1999/hd/mosc91e.htm>. 18 For a good discussion of this concept, see A. Rosas, ‘Internal Self-Determination’ in C. Tomuschat (ed.), Modern Law of Self-Determination (Martinus Nijhoff Publishers, Dordrecht, 1993) pp. 225–252. 17

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AUTONOMY AND THE EFFECTIVE PARTICIPATION OF MINORITIES IN PUBLIC LIFE: DEVELOPMENTS IN THE OSCE satisfying differing needs and desires would strengthen the State to the benefit of all (and under-cut demands for secession). However, in a case where territorial autonomy might be sought for a region geographically contiguous with a neighbouring State where the majority population shares the same ethnicity or nationality as the (minority) population in the prospectively autonomous territory, i.e. where there is a neighbouring ‘kin-State’, there may well be both sensitivities and practical concerns about the weakening of the State to the detriment of the majority (and under-cut support for autonomy). Worse yet in such a situation would be demands for territorial autonomy on an ethnic criteria (i.e. a full-fledged nationalist and territorialist demand) which are inherently problematical for human rights and likely conflict-creating.19 While autonomous administrations may be supported as a possible means for fulfilling OSCE principles, the appropriateness of the type and the specific content/extent of autonomy is particular to each case. There is no defining model, merely other experiences. Of course, there are no doubt valuable lessons to be learned from these experiences.20 It is also clear that the achievement of autonomy will be satisfying in some situations, and not in others; it will de-escalate if not resolve conflict in some situations, while its pursuit may be conflict-creating or escalating in other situations. Some factors to observe in this regard are: the attitudes of the parties, the geo-political situation of the country, and the level of wealth (total and comparative) within the State. The OSCE does not advocate any particular type or degree of autonomy, nor does it have an institutional mechanism that would consider the issue on a systematic basis. However, the OSCE would have two bases of legitimate concern in relation to any pursuit of autonomy: 1) that the process and eventual outcome fulfil the requirements of the ‘human dimension’ (including Part IV of the Copenhagen Document) which is the legitimate concern of all OSCE States; and 2) that regional peace and security be maintained (the ‘security

19

Cf. recently renewed calls for autonomy on the part of some ethnic Hungarians in the area of Transylvania in Romania; see http://www.nineoclock.ro/index.php?issue=2979, visited on 8 August 2003. 20 For an overview of possible autonomy arrangements in terms of institutions and functions from the perspective of human rights, see G. Alfredsson, ‘Autonomy and Human Rights’ in L. Lyck (ed.), Constitutional and Economic Space of the Small Nordic Jurisdictions (Nordiska Institutet för Regionalpolitisk Forskning, Stockholm, 1997) pp. 34–47. Alfredsson offers the type of considerations for any autonomy arrangement which would intend to be consistent with existing standards of international law including human rights standards, in particular that the will of the people be the basis of authority of government where the legitimate aspirations of all persons are accommodated on an equal basis in free and open societies. For an earlier and more conservative consideration of the possible content of autonomy arrangements with the expressed intention to reconcile respect for the principle of territorial integrity with respect for the aspirations of minorities and local populations, see R. Lapidoth, ‘some Reflections on Autonomy’ in Mélanges offerts à Paul Reuter. Le droit international : unité et diversité (Editions Pedone, Paris, 1981) pp. 379–389.

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JOHN PACKER dimension’), i.e. in case the dispute between the group and the central authorities should hold the prospect of becoming violent. Insofar as they may intersect with the aspirations of persons belonging to national minorities, these concerns are reflected in the mandate of the OSCE High Commissioner on National Minorities (HCNM) who, as an instrument of conflict prevention, is to employ diplomatic means to contain and to de-escalate disputes involving national minorities which have the propensity to erupt into armed conflict (between States), or otherwise negatively affect relations between States.21 On this basis, the HCNM has been involved in a number of situations featuring express demands for and arrangements of autonomy. Two situations which merit mention are those of Ukraine (Crimea) and the former Yugoslav Republic of Macedonia (FYROM) – the former involving a classical territorial autonomy arrangement known as such, and the latter (despite demands for territorial ‘autonomy’) being addressed through a general decentralisation of the authority of the State. The HCNM’s involvement in Crimea had at least two dimensions, with the prospect of two types of autonomy: territorial (for the peninsula) and personal/cultural for the Crimean Tatar population who constitute a national, ethnical, cultural, linguistic and religious minority on the peninsula but also claim the territory as their ‘homeland’.22 The majority of the population of Crimea are ethnic Russians, many of whom arrived (or are descendants of those who arrived) during the Soviet period: the ethnic Ukrainian population constitutes a minority of some 20 per cent of the total population. In his efforts to prevent violent conflict on the peninsula among various groups and also to reduce tensions between the newly independent Ukraine and neighbouring Russia, the HCNM led processes which reached agreement between Kyiv and Simferopol confirming a territorial autonomy for the region of Crimea within the unitary Ukrainian republic, while also addressing particular Crimean Tatar concerns over mainly (but not exclusively) issues of cultural identity and political participation. The HCNM enjoyed wide and consistent support for his activities from OSCE participating States. 21

For the mandate of the HCNM, see paragraph 23 of part I together with part II of the Helsinki Decisions constituting part of the CSCE Helsinki Document 1992: The Challenges of Change adopted in Helsinki by the Heads of State and Government on 10 July 1992. The full text of the Helsinki Document 1992 is available at http://www.osce.org/docs/english/1990-1999/summits/hels92e.htm; the text is also reproduced in 13 HRLJ (1992) pp. 284 et seq. For a comprehensive analysis of the mandate, see R. Zaagman, ‘The CSCE High Commissioner on National Minorities: An Analysis of the Mandate and the Institutional Context’ in A. Bloed (ed.), The Challenges of Change; The Helsinki Summit of the CSCE and Its Aftermath (Martinus Nijhoff Publishers, Dordrecht, 1994) pp. 113–175. 22 For a description and analysis of the HCNM’s involvement in Crimea up to the late 1990s, see J. Packer, ‘Autonomy Within the OSCE: The Case of Crimea’, in M. Suksi (ed.), Autonomy: Applications and Implications (Kluwer Law International, The Hague, 1998) pp. 295–316.

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AUTONOMY AND THE EFFECTIVE PARTICIPATION OF MINORITIES IN PUBLIC LIFE: DEVELOPMENTS IN THE OSCE In the case of the FYROM, this newly independent State arising from the breakup of the former Yugoslavia constituted a titular ethnic Macedonian community in dispute with a substantial ethnic Albanian minority who live compactly in regions of the country bordering Albania and the province of Kosovo within the Republic of Serbia (then of the Federal Republic of Yugoslavia) which contained overwhelming ethnic Albanian majorities. This led to varying demands for territorial autonomy or ‘parallel’ regimes which were viewed in threatening terms by the ethnic Macedonian community; expressed aspirations for a greater Albania exacerbated the situation. In an effort to prevent violent conflict and to achieve stability not only in Macedonia but in the region more generally (given the various linkages), the HCNM sought ways of accommodating legitimate ethnic Albanian demands within the FYROM short of autonomy on a territorial basis (which would have divided the State).23 Breaking down the subject matter content of Albanian demands, the HCNM recast the discussion in terms of (equal) symmetrical decentralisation, effectively granting more power to all localities within a unitary FYROM. This approach eventually survived in the form of the OHRID Framework Agreement of 13 August 2001. Formally, there exists no autonomy arrangement in the FYROM. In sum, the OSCE’s approach to and treatment of autonomy is derived from its understanding of and commitment to democratic governance where autonomous arrangements are just one way of accommodating diversity in pluralist societies. The concept is evolving, and intended to promote integration. In extent, it is quite broad, encompassing various types and forms, and spanning in subject matter the range of OSCE ‘dimensions’ including those of human rights and humanitarian concerns, economic, social and environmental concerns, and even traditional security concerns. In content, it may run from virtual independence (leaving very little to the central authorities in terms of policy, law, management or administration) to quite modest administrative ‘powers’. No point on this range indicates either its value or appropriateness, which are case-specific. In this sense, more does not mean better. Simply, it offers options from which policy-makers may choose in their efforts to meet the varying needs of the people and communities to whom they are responsible. As broad, flexible and still evolving as it may be, the notion of autonomy within the OSCE also has its limits.24 Clearly, there is no right to autonomy. Nor is there any so far agreed right to self-determination (external or internal) for particular communities, minorities or groups short of that comprising the whole population of a State. Even if viewed as a part of the effective participation of minorities in public life, it also remains limited in nature and scope (see infra).

23

A summary description of the HCNM’s involvement in the FYROM through early 2000 is found in W. Kemp (ed.), Quiet Diplomacy in Action: The OSCE High Commissioner on National Minorities (Kluwer Law International, The Hague, 2001), pp. 183–196. 24 See G. Gilbert, supra note 13, p. 321.

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JOHN PACKER 3. PARTICIPATION WITHIN THE OSCE The same standards which may support autonomy arrangements also support arrangements short of autonomy which may be equally important and satisfying for those interested or affected. The distinction made here is between degrees of control offered by ‘autonomy’ and forms of having a meaningful say over matters of interest. In this sense, to have ‘a say’ – even a substantial one, including e.g. a suspensive veto – is not to have autonomy.25 But, to have a say may be enough for many groups and for many purposes. Indeed, from the perspective of good governance in open societies, having a say places the burden on the authorities to justify their decisions in the light of expressed views such that (elected) authorities will be loath to ignore or discount such views. This underlines the point that, at least under democratic governance, reasons matter. Unfortunately, the existing catalogue of international standards regarding such matters of democratic governance is short and shallow. In the face of a number of situations where at least greater clarity of existing standards would have helped, the HCNM initiated a dialogue with governments about the essential ideas of governance, participation and accommodation of diversity. In doing so, he drew inspiration from a conference on ‘Governance and European Integration’ organised in Rotterdam at the end of May 1997 by the Dutch Presidency of the European Union. Over the course of the next year, from summer 1997 through autumn 1998, the HCNM hosted two off-the-record expert consultations on the subject and then organized an inter-governmental conference on ‘Governance and Participation: Integrating Diversity’ hosted by the Swiss Confederation in Locarno on 18–20 October 1998. During the Locarno Conference, Chaired by the HCNM, States’ representatives were forthcoming in sharing their experiences, both positive and negative. Representatives of both the ‘old democracies’ and the ‘new democracies’ emphasised the on-going evolution of their own systems towards increasing decentralisation. In this respect, it was not so much a matter of finding ‘the right way’ or ‘a final outcome’, but of considering the many ways and choosing the most appropriate one for the specific situation at any one time in an on-going democratic system. In summing up the discussions, the Chairman’s Statement concluded by expressing the desirability of ‘concrete follow-up activities, including the further elaboration and specification of the various concepts and mechanisms of good governance with the effective participation of minorities, leading to integration of diversity within the State’.26

25

Gilbert limits ‘autonomy’ to meaning ‘self-government’; ibid., p. 318. A compilation of the basic materials from the Locarno Conference (including introductory note, key-note speeches, expert presentations, the Chairman’s Statement, conference programme and list of participants) is available from the Office of the HCNM; see John Packer (ed.), From Locarno through Lund to Warsaw and Beyond; Integrating Diversity through Good Governance and Effective Participation (The Hague, 2003). 26

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AUTONOMY AND THE EFFECTIVE PARTICIPATION OF MINORITIES IN PUBLIC LIFE: DEVELOPMENTS IN THE OSCE With the immediate support of the Swedish Government, the HCNM called upon a group of internationally recognized independent experts to embark upon a process of elaborating recommendations. This resulted in September 1999 in their final adoption of the Lund Recommendations on the Effective Participation of National Minorities in Public Life. The conceptual place of the Lund Recommendations fits in the process-oriented issues noted above. The Recommendations are structured in four parts: general principles; participation in decision-making; self-governance; and guarantees. The first part comprises a number of initial assertions, including a statement of intent and reiteration of underlying principles; only the final point in this part contains, in fact, a recommendation. Perhaps most importantly, the first point states both the immediate and ultimate aim of the Lund Recommendations as being ‘to facilitate the inclusion of minorities within the State and enable minorities to maintain their own identity and characteristics, thereby promoting the good governance and integrity of the State’. As is clear from the start, the fundamental logic of the Lund Recommendations is drawn from the evolving notion of ‘good governance’ and the principle of subsidiarity, reflecting the will of the whole population (‘the general will’) and accommodating their different views and interests to the extent possible. In this regard, majority decision-making may be viewed as a default position necessary for decision-making where, as is common, the will of the people is divided. Good governance, therefore, requires that steps be taken so far as practicable to accommodate the minority will(s) in an effort to respond to the whole population. This general notion of governance is to be guided by the principle of subsidiarity which requires that decisions be taken as close as possible to those directly affected, preferably by themselves. Insofar as people may be affected according to geographical and non-geographical groupings, so decision-making may be structured along both territorial and non-territorial lines. Minorities (like all others in the polity) have a variety of views and interests, some of which are related to the polity as a whole and some of which relate only to themselves. In terms of processes, it was further observed by the experts that there were fundamentally two means available to affect decisions: means of having ‘a say’, and means of having ‘control’. The principle of subsidiarity implied that minorities should, so far as practicable, have control (or a significant measure of control) over those decisions which affect especially or only themselves (as the immediately relevant international standards clearly imply). For decisions relating to the polity as a whole (of which minorities are only a part), the principle of subsidiarity implies that minorities should have a say – beginning with the participatory rights enjoyed by everyone and increasing in voice according to the degree of minority interest; forms of enhancing minority voice may include special electoral arrangements or consultative mechanisms. These two means of affecting decisions provided the experts with two vectors of enquiry, exploration and eventual elaboration of recommendations which may be graphically expressed as follows: 331

JOHN PACKER

Figure 1.

C O N T R O L

A S A Y GENERALPRINCIPLE

The two vectors in Figure 1 above are reflected specifically in parts two and three of the Lund Recommendations addressing, respectively, ‘participation in decisionmaking’ (i.e., having a say) and ‘self-governance’ (i.e., having control). In relation to the latter, it should be noted that the experts intentionally treated non-territorial arrangements of self-governance prior to territorial arrangements in an effort to draw the attention of policy and law-makers to the much less well-known, understood or applied possibilities of ‘personal autonomy’ or ‘cultural autonomy’ – regimes which, it is believed, may pose less of a risk to (or, at least, raise less concern about) the maintenance of the territorial integrity of the State. The Lund Recommendations are, of course, the recommendations of independent experts and enjoy so far no official status in international relations or law. But they are not merely recommendations: they are expressly rooted in a wide variety of existing international standards which are binding upon OSCE participating States as legal obligations or political commitments. Moreover, they have been endorsed and invoked by the HCNM, who drew them formally to the attention of OSCE participating States in a special meeting of OSCE delegations held in Vienna on 30 June 1999 at which representatives from some 45 States participated; at the meeting, no negative voice was raised, while several States voiced praise.27 Further, wide governmental support has been expressed in closed meetings, as reflected in public statements from the Presidency of the European 27 The Lund Recommendations were circulated by the HCNM on 22 June 1999 initially with a background note in a restricted document (PC.INF/76/99) and then on 30 June 1999 as a public document (HCNM.GAL/4/99). The final text of the Lund Recommendations was circulated in the OSCE as a public document in September 1999 in connection with the OSCE’s Human Dimension Review Conference as OSCE doc. RC.GAL/36/99. They are also available in a number of languages on the HCNM’s web-site at <www.osce.org/hcnm/ documents/recommendations/lund/index.php3>.

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AUTONOMY AND THE EFFECTIVE PARTICIPATION OF MINORITIES IN PUBLIC LIFE: DEVELOPMENTS IN THE OSCE Union28 and the United States of America.29 They have also been discussed at the highest level of inter-governmental meetings, such as at the OSCE’s 1999 Instanbul Summit Meeting. Subsequently, Governments such as the Russian Federation have characterized the Lund Recommendations and others advanced by the HCNM as ‘groundbreaking achievements’ and suggested the holding of specialised seminars to consider their implementation.30 General public endorsement was also implicitly reiterated by the European Union, this time under the French Presidency in addressing the session on ‘National Minorities’ at the OSCE’s Implementation Meeting on the Human Dimension on 24 October 2000, as follows: ‘Over the past seven years the High Commissioner has identified and addressed on many occasions recurrent areas of major concern, namely minority education, the use of minority languages, and the effective participation of national minorities in public life. Through the development of general recommendations on these themes by independent experts, a new source of valuable reference for policy- and law-makers in various participating States has been put in place at the 31 initiative of the High Commissioner.’

It should also be noted that the Lund Recommendations have inspired action by other OSCE institutions. Specifically, the Office for Democratic Institutions and Human Rights (ODIHR) together with the International Institute for Democracy and Electoral Assistance (International IDEA), with in-put from the Office of the HCNM, subsequently elaborated Guidelines to Assist National Minority Participation in the Electoral Process.32 The aim of these Guidelines (sometimes called “the Warsaw Guidelines” after the city in which they were elaborated) is to build upon the Lund Recommendations relating to elections and fill-out in detail (with examples) the ways in which minorities might have an effective (if not optimal) say over matters which affect them. Aside from reference to the Lund Recommendations in specific situations in which he has been involved, the HCNM also focused on the issue of participation vis-à-vis one particular trans-European community, the Roma/Sinti/Gypsies and Travelers. Observing that exclusion from participation of almost any kind lay at the 28 The Finnish Presidency of the EU ‘statement on the report of the High Commissioner on National Minorities’, OSCE doc. PC.DEL/331/99 of 1 July 1999. 29 U.S. Mission to the OSCE ‘statement on Max van der Stoel, High Commissioner on National Minorities’, OSCE doc. PC.DEL/333/99 of 1 July 1999. 30 Statement of the Russian Federation at the 303rd Meeting of the Permanent Council, 12 October 2000. 31 English translation of the statement of the French Presidency of the European Union to ‘session 10 – National Minorities’ (24 October 2000) of the OSCE Implementation Meeting on Human Dimension Issues, Warsaw, 17–27 October 2000, OSCE doc. PC.DEL/653/00 of 1 November 2000. 32 The Guidelines are available at <www.osce.org/odihr/documents/guidelines/gl_nmpa_ eng.pdf>.

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JOHN PACKER centre of the plight of this community, the HCNM dedicated a chapter of his April 2000 Report on the Situation of Roma and Sinti in the OSCE Area to the issue of political participation.33 On this basis, the HCNM made a number of recommendations, with others inspired to draw upon.34 IV. CONCLUSION The pluralist nature of the population of every State requires efforts to locate and implement appropriate political forms. Making the pluralist State work in the sense of serving the varying interests and aspirations of its whole (diverse) population can yield the stability and security necessary for economic and social development for all. From this perspective, rather than undermining the State, enhanced and varying forms of participation, including autonomous arrangements, can strengthen it by matching forms of governance appropriate to the actual socio-cultural composition of the State. Indeed, in accommodating diverse interests, such an approach has an integrative effect as it solidifies mutually beneficial interdependence. Decentralization and enhancement of local self-government contributes substantially to giving people greater power over their own destinies. This can be especially important for ensuring effective participation of persons belonging to national minorities in public affairs. In terms of a principle, such subsidiarity implies that the closer decisions are made to those who are to be affected by them, the more democratic they are considered. From this perspective, decentralization and subsidiarity constitute forms of good governance. These may include autonomy arrangements. While there remains no specific OSCE meaning of, nor express standard concerning, ‘autonomy’, the notion is generally understood and supported by the OSCE in the context of good and democratic governance particularly in relation to accommodation of the needs of persons belonging to national minorities. As demonstrated in the case of Crimea, such autonomy arrangements may take the form of a special allocation of powers over a territorial unit and/or of a special allocation of powers over a particular community of persons irrespective of territorial concentration. The case of Crimea also shows that the division of powers may be exclusive or shared, decisive or consultative with the appropriateness and effectiveness of the division turning on the particular circumstances (and even personalities) involved. Of perhaps more general interest, this discussion reveals our changing understanding of the notion of ‘sovereignty’ which is no longer to be “seen merely as ‘a formal link between power and territory’, but more as ‘“a new concept of

33 See chapter V of the Report; for the full text of the Report, see <www.osce.org/documents/hcnm/2000/03/241_en.pdf>. 34 See the pamphlet of the European Roma Rights Center on ‘Political Participation and Democracy in Europe: A Short Guide for Romani Activists’ available at <www.errc.org/publications/pamphlets/political.shtml>.

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AUTONOMY AND THE EFFECTIVE PARTICIPATION OF MINORITIES IN PUBLIC LIFE: DEVELOPMENTS IN THE OSCE sovereignty”, meaning sovereignty as something divisible’.35 This ‘divisible’ sovereignty seems largely encompassed in the more precise concept of ‘jurisdiction’ which may be divided with regard to territory, persons and subject-matter in a virtually infinite number of arrangements. In the democratic State seeking to achieve the greatest freedom for everyone, jurisdictional arrangements should be determined by negotiation (i.e. following democratic principles under the rule of law) between the interested parties and their legitimate representatives reflecting the will of the people as the basis of authority of government. In this respect, Gilbert concludes that ‘autonomy is increasingly viewed as a proper response to meeting the needs of a group within the State’.36 Developments in the OSCE support this conclusion.

35

A. Rosas, ‘Whither Sovereignty?’, 2 Särtryck ur Juridisk Tidskrift, (1994–1995) pp. 313 and 318, respectively. 36 Gilbert, surpra note 13, pp. 315–316.

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AUTONOMY AND INDIGENOUS PEOPLE INDIGENOUS RIGHTS AND THE PROMISE OF A LIMITED AUTONOMY MODEL Darren Hawkins 1. INTRODUCTION While most international documents on human rights – including the relatively few documents on minority rights – studiously avoid issues of autonomy for minority groups, two proposed declarations on indigenous rights are addressing the issue head-on. Both the United Nations (UN) and the Organization of American States (OAS) are drafting declarations on the rights of indigenous peoples that incorporate a number of principles regarding autonomy. Although the work has been ongoing for many years and the obstacles are immense, Western Hemisphere states have recently made surprising progress by reaching agreement on key issues like the basic meaning and scope of self-determination for indigenous peoples. This progress has been made possible by adopting a governance model that I characterize as ‘limited autonomy’. This model differs from three other possible models: a democratic integrationist model emphasized in Europe, an authoritarian integrationist model favoured from time to time by a wide variety of governments, and an extensive autonomy model supported by indigenous groups themselves. The limited autonomy model represents a compromise position between indigenous groups who want extensive autonomy and governments who prefer no international norms on autonomy. It generally reflects the domestic approach currently employed by major federalist political systems in the Western Hemisphere, including Canada and the United States. In this paper, I provide a brief overview of the various governance models employed by states with respect to indigenous and minority groups and illustrate those models by drawing on Latin American history and the history of the relevant international agreements. I argue that the Western Hemisphere acceptance of a limited autonomy model results from a historical process in which authoritarian repression produced indigenous activism and an attempt to push States toward unworkable idealism that has now evolved into the beginning stages of pragmatic political compromise. Three factors appear to have facilitated the emergence of a limited autonomy model in the Americas: the dominance of democratic governments free from security threats, prevalent historical myths linking autonomy with indigenous peoples, and a relatively strong association between indigenous peoples and particular geographical areas. 337

DARREN HAWKINS Agreement on a limited autonomy model is far from a foregone conclusion, and the model may not be generalizable to other minority groups or other areas of the world. In the process, however, American States are redefining the notion of selfdetermination. Traditionally, self-determination has been associated with either decolonization or minority groups seeking statehood. The new understanding of self-determination emerging in the indigenous rights dialogue makes the concept dependent on the context of the people seeking self-determination. In this view, indigenous people enjoy self-determination with respect to their own internal affairs. Such a redefinition of this fundamental concept could have far-reaching implications. 2. INTEGRATIONIST APPROACHES In the first 40 years after World War II, most States adopted aggressively integrationist attitudes and approaches toward indigenous peoples. As Anaya so ably summarizes this period: ‘The universe of values that promoted the emancipation of colonial territories during the middle part of this century simultaneously promoted the assimilation of members of culturally distinctive indigenous groups into dominant political and social orders that engulfed them. Assimilation and rights of full citizenship were used to bring within the fold of selfgovernment the indigenous groups living in independent and newly independent states . . . Nation building was a corresponding policy . . . of breaking down competing ethnic or cultural bonds, a policy engaged in even by, or perhaps especially by, newly independent states. To the extent the international community valued cultural diversity, it was largely the diversity existing among the different states and colonial territories, not 1 the diversity that might exist wholly within them.’

Integrationist approaches take two forms, authoritarian and democratic. In their authoritarian form, States ride roughshod over the preferences of minorities, forcing them to conform to the rules and norms of the broader society and sometimes simply killing those who object. Evidence of this approach can be seen throughout Latin America, where States adopted authoritarian integrationist approaches that did not consider the needs or interests of indigenous groups. In Chile, for example, the military regime in the 1970s and 80s ‘attempted to legislate its approximately 1 million Mapuche citizens out of existence by dividing previously protected communal lands; the law stated that “the lands which are divided no longer remain indigenous nor do their occupants”’.2

1

S. J. Anaya, Indigenous Peoples in International Law (New York, Oxford University Press, 1996), p. 44. 2 A. Brysk, From Tribal Village to Global Village: Indian Rights and International Relations in Latin America, (Stanford: Stanford University Press, 2000).

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INDIGENOUS RIGHTS AND THE PROMISE OF A LIMITED AUTONOMY MODEL A democratic integrationist approach, in contrast, seeks to respect the preferences of minority groups in formulating national policies and international agreements. At a minimum, it guarantees non-discrimination for members of minority groups and assigns the state the role of fostering a productive relationship between minorities and other social groups. The extent of state activism in promoting integration might vary quite a bit by state or by issue area. In the past decade, European States have most vigorously promoted this democratic integrationist model, as best summarized in the Council of Europe’s 1995 Framework Convention for the Protection of National Minorities. One major focus of Europe’s Framework Convention is to guarantee nondiscrimination; i.e., that individuals belonging to minority groups have the same civil and political rights as do other citizens. The Convention also urges States to foster integration, but refrain from actions intended to assimilate minorities against their will. In Article 6, for example, States are to ‘encourage a spirit of tolerance and intercultural dialogue,’ and in Article 9, they are to facilitate minority access to the media. In Article 12, States are to ‘facilitate contacts among students and teachers of different communities’. In keeping with its integrationist approach, autonomy is only vaguely hinted at, principally in Article 15 where States are to create conditions necessary for minorities to participate in public affairs.3 Though less welldeveloped, the 1992 U.N. General Assembly Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities also generally adopts this model. 3. THE OAS AND UN DRAFT DECLARATIONS: EXTENSIVE AUTONOMY AND ITS CRITICS Interestingly, the indigenous rights conventions being negotiated in the OAS and the UN have generally ignored integrationist models in favour of autonomy approaches. This preference seems to be driven by indigenous peoples themselves, who have long suffered at the hands of authoritarian integrationism and view autonomy as the best remedy. While indigenous peoples in the Americas had previously enjoyed trans-national ties, they strengthened those ties in the 1970s and produced important changes in state policies toward the end of the 1980s, often in connection with democratization. In Chile, for example, the new democratic government passed a law with significant input from the Mapuche people that prohibited the selling, expropriation, or taxing of Indian lands.4 In Guatemala, an authoritarian government that practiced genocide against indigenous people finally gave way to a more

3

A. Phillips, ‘Participation and the Council of Europe’s Framework Convention for the Protection of National Minorities’. Paper presented at the International Seminar on Autonomist and Integrationist Approaches to Minority Protection held in Copenhagen, Denmark at the Danish Center for Human Rights, 3–4 April 2002. 4 Brysk, supra note 2, p. 266.

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DARREN HAWKINS democratic regime in the mid-1990s. As a result, the government agreed to engage in land reform and implement limited autonomy for indigenous groups.5 At about the same time, indigenous peoples began lobbying States and international organizations to create international agreements protecting indigenous rights. Indigenous groups generally rejected integrationist approaches and favoured documents that would provide them with collective rights and with strong autonomy. An effort at the United Nations got underway in 1985 while the OAS began drafting a declaration in 1989.6 Under pressure from indigenous groups and with the 500th anniversary of Columbus’ voyage to America quickly approaching, the General Assembly of the OAS decided in 1989 to create ‘a juridical instrument relative to the rights of the Indian peoples, for adoption in 1992’.7 States assigned the task to the InterAmerican Commission on Human Rights (IACHR), which had formally suggested this step in the first place. Even though the IACHR is comprised of experts relatively unconstrained by political fetters, the task of creating a declaration on indigenous rights proved difficult, and the year 1992 came and went. It was not until 26 February 1997 that the IACHR was finally able to approve a Draft American Declaration on the Rights of Indigenous Peoples.8 This document adopted a model of extensive autonomy that reflected the desires of indigenous groups and the discourse of collective rights while discounting the concerns of States. Although debates about autonomy arise in a number of contexts, I focus on three issues in particular: 1-the definition of indigenous people and related terms; 2-the definition and scope of self-determination and closely related concepts like self-government; and 3-the nature and scope of property rights. With respect to the definition of indigenous people, the IACHR proposal invoked the term ‘peoples’, which in international law is linked to selfdetermination. At the same time, the IACHR draft attempted to break that link by including a paragraph explicitly saying that the term should not be associated with rights granted under international law. While this formulation split the baby by trying to satisfy both indigenous groups and states, the IACHR then handed a clear victory to indigenous groups by failing to define ‘indigenous peoples’. To qualify as an indigenous people in this draft declaration, a group need only self-identify as such. Indigenous groups lobbied hard for non-definition in order to preserve their field of action, but it does not take much effort to imagine why States would prefer a definition. In the United States, for example, we might expect everyone from racist tax dodgers to multinational corporations to claim indigenous status in order to win certain rights if self-identification were the only criteria. Furthermore, the draft repeatedly endows indigenous peoples with collective rights such as collective action, cultural integrity, and a safe and healthy environment. 5

Brysk, supra note 2, pp. 270−71. Anaya, supra note 1, pp. 51−54. 7 OAS General Assembly, AG/Res. 1022, XIX-O/89. 8 IACHR, ‘Proposed American Declaration on the Rights of Indigenous Peoples’, available at http://www.cidh.org/indigenous.htm, accessed 10 July 2002. 6

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INDIGENOUS RIGHTS AND THE PROMISE OF A LIMITED AUTONOMY MODEL While the draft did not explicitly grant self-determination to indigenous peoples, it offered a broad reading of the right to self-government. In Article 15, the IACHR proposed that, ‘[i]ndigenous peoples have the right to freely determine their political status . . .’ and that they are ‘entitled to autonomy or self-government with regard to inter alia culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resource management, the environment and entry by nonmembers . . . .’. Not only is this list rather long and broad, it suggests that these issues are only some of the ones in which indigenous peoples have autonomy. With respect to land and territory, the draft declaration granted some of the most sweeping benefits. According to Article 18(1), indigenous peoples are entitled to lands, territories and resources they have historically occupied, and to the use of those to which they historically had access. In addition, Article 18(7) suggests that States must return any lands, territories, and resources ‘which have been confiscated, occupied, used or damaged’, or offer adequate compensation for those lands. The potentially far-reaching consequences of such principles scarcely need to be commented on. As might be expected, many States rejected this model of relatively unlimited autonomy and felt the IACHR simply ignored their concerns in proposing this draft. Upon receiving the draft in June 1997, the OAS General Assembly asked States to submit their comments on the draft. Argentina, Brazil, Canada, Colombia, Mexico, and the United States responded promptly by discussing a large range of problems with the proposal.9 Argentina’s response was the most directly critical and its comments reflect the concerns of the other States, which were couched in more diplomatic language. In its written comments, Argentina suggested that the term ‘self-government’ was completely inappropriate and that ‘self-determination’ concerned only decolonization efforts with no possible reference to indigenous peoples. Argentina proposed the deletion of all references to self-government, to the legitimacy of indigenous legal systems, and to the word ‘territories’ in the context of indigenous people. The gulf between States and indigenous peoples could have hardly been wider. After receiving these comments, the Assembly sent the draft to a committee of government experts, who expertly and exhaustively picked apart the declaration’s preface during their meeting in February 1999 without reaching much agreement on how to piece it back together – news that undoubtedly delighted the governments who had commissioned the experts. Later that year, the General Assembly passed the hot potato to a new Working Group within the OAS’s Permanent Council, a political executive controlled by Member States. From late 1999 to early 2002 the Working Group held three sessions to discuss the proposal intensively. As of July 2002, the discussions are ongoing with no final text in sight. 9

OAS, ‘Final Report’, Meeting of Government Experts to Analyze the Proposed American Declaration on the Rights of Indigenous Peoples, OEA/Ser.K/XVI RECIDIN/doc.10/99, 26 March 1999. Also see the individual state comments, classified as CP/CAJP-1293/98 and addenda 1−5.

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DARREN HAWKINS At first glance, this summary of the historical process suggests that the declaration on indigenous rights is going nowhere fast. At the conclusion of the 2001 Working Group meetings, States had agreed on little. States and indigenous groups offered so many different versions of the language that some of the original paragraphs in the IACHR’s draft were listed with as many as eight alternative proposals beneath them. The original 13-page proposal from the IACHR had ballooned to 30 pages with all of the proposed alternative paragraphs listed.10 In the 12 years after the OAS first started working on indigenous rights, States seemed farther than ever from agreement. A quick look at the UN efforts suggests that, if anything, States are even farther from an agreement.11 After a group of independent experts worked from 1989 to 1993 to produce a draft declaration, a working group composed of States began to argue about the draft in 1995. To date, the group – working under the auspices of the UN Human Rights Commission—has made little progress. State negotiators met for their seventh session in January and February 2002, but again failed to resolve the problem of whether to refer to indigenous ‘people’ or ‘peoples’ or ‘populations’ or some other formulation.12 In most of the debates, the chair of the working group has done little more by way of summary than to claim that the groundwork has been laid for further discussions. The proposed text of the draft is so riddled with brackets indicating alternative language and contested terminology that it is essentially illegible. When some States recently suggested during a lengthy debate that their lack of progress was due to procedural flaws in the negotiations, the chair replied rather honestly that no substantial progress has been made due to a lack of political will. To top off this pessimistic scenario, it is worth recalling that the proposed legal instruments are only declarations rather than legally binding conventions. Even at the height of the Cold War, the United Nations was able to draft the twin human rights conventions of 1966 in about 16 years from start to finish. In light of these facts, a cynic would have good reason to believe that an autonomous model of indigenous rights will never gain international approval.

10 OAS, ‘Draft American Declaration on the Rights of Indigenous Peoples’, OEA/Ser.K/XVI GT/DADIN/doc.1/99 rev.3, 5 April 2001, in ‘Report of the Chair’, EA/Ser.K/SVI GT/DADIN/doc.23/01 rev.1, 26 July 2001. 11 Recent assessments of the UN efforts may be found in R. L. Barsh, ‘Indigenous peoples and the UN Commission on Human Rights: A case of the immovable object and the irresistible force’, 18 Human Rights Quarterly (1996): pp. 782–813; J. Debeljak, ‘Barriers to the recognition of indigenous peoples’ rights at the United Nations’, 26 Monash University Law Review (2000): pp. 159–94; S. B. Quesenberry, ‘Recent United Nations initiatives concerning the rights of indigenous peoples’, 21 American Indian Culture and Research Journal (1997): pp. 231–60; and S. Weissner, ‘Rights and status of indigenous peoples: A global comparative and international legal analysis’, 12 Harvard Human Rights Journal (1999): pp. 57–128. 12 UN Commission on Human Rights, ‘Indigenous Issues: Report of the working group established in accordance with Commission on Human Rights Resolution 1995/32,’ E/CN.4/2002/98, 6 March 2002.

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INDIGENOUS RIGHTS AND THE PROMISE OF A LIMITED AUTONOMY MODEL Nevertheless, a closer look suggests that some progress has been made and that a compromise model of limited autonomy may be emerging from the negotiations among States and indigenous groups in the OAS. I first describe the nature of this compromise and then assess the progress it is making. 4. LIMITED AUTONOMY MODEL The central thrust of the limited autonomy model is to allow indigenous groups to make decisions that affect their own people, though the decisions are restrained in substantive scope and exclude some issue areas. In this model, indigenous people do not enjoy complete self-determination and sovereignty, nor do they set any policies on foreign affairs or similar issues such as monetary policy. They do enjoy limited autonomy in some areas, with the exact parameters open to negotiation and debate. The model pays little attention to efforts to integrate indigenous people into the broader society. Supporters of this model seem to implicitly assume that a wellfunctioning multicultural society will naturally emerge when minorities are granted limited autonomy in appropriate ways. Two features are central to a limited autonomy approach: 1-Indigenous people enjoy self-determination with respect to matters internal to their people; 2-Self-determination is negotiated within the existing state, always ensuring the territorial integrity and unity of the state. The United States, one of the leading advocates of a limited autonomy model, defines it in the following way: ‘Indigenous peoples have the right to internal self-determination. By virtue of that right, they may negotiate their political status within the framework of the existing nation-state and are free to pursue their economic, social and cultural development. Indigenous peoples in exercising their right of internal self-determination, have the internal right to autonomy or self-government in matters relating to their local affairs, including determination of membership, culture, language, religion, education, information media, health, housing, employment, social welfare, maintenance of community safety, family relations, economic activities, lands and resources management, environment, and entry by non-members, as well as ways and means of financing these autonomous ’13 functions.

Canada, which supports a similar model, argues that indigenous peoples have an inherent right of self-government.14 ‘Recognition of the inherent right is based on 13 United States, ‘U.S. Intervention’, OEA/Ser.K/XVI GT/DADIN/doc. 66/02, 14 March 2002, pp. 3−4. 14 Canada, ‘Comments by the delegation of Canada on articles VII through XVIII and on the issue of self-determination in the Proposed American Declaration on the Rights of Indigenous Peoples’, OEA/Ser.K/XVI GT/DADIN/doc.69/02, 14 March 2002, p. 9.

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DARREN HAWKINS the view that the indigenous peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources’. At the same time, ‘the exercise of self-government must be harmonized with the exercise of jurisdiction by other levels of government within that state . . . Therefore, the exercise of self-government should be accomplished through negotiations between the appropriate level of government and indigenous communities.’ More specifically, supporters suggest that the model should limit autonomy in three important ways. The first limitation is to substitute procedural autonomy for substantive autonomy. For example, rather than allowing any group to self-identify as indigenous, the United States suggested, as one possibility, a procedural definition of indigenous in which States would be required to establish ‘a public and transparent process for determining which groups are indigenous’.15 Likewise, rather than offering indigenous people the restitution of property that is part of their heritage, the United States proposed effective legal framework establishing mechanisms for the repatriation of cultural property. Canada essentially followed the same approach by proposing to guarantee a right of access to legal procedures for the return of cultural property.16 A second limitation promoted by States is to require that decisions made by autonomous organizations would meet minimal standards established by States. On education and environmental protection issues, for example, the United States has argued that indigenous peoples can set their own standards, so long as they do not fall below standards established at national or state/province levels.17 Along the same lines, the United States has argued that indigenous peoples should be able to develop and apply their own legal systems as long as they are ‘consistent with international human rights standards’. The third limitation consists of a strong reluctance to employ the notion of collective rights. States have been reluctant to refer to indigenous groups as ‘peoples’, to invoke the notion of ‘rights’ when they could use the language of goals and State duties, and to utilize collective rights when they might rely on individual rights. The debate over the word ‘peoples’ has been especially hard-fought. Many States object to the term because in international law it is associated with selfdetermination, sovereignty, and statehood. Indigenous groups have favoured the term because of these associations, while simultaneously arguing that they do not 15

United States, Letter from the U.S. Permanent Mission to the OAS to the IACHR, 16 Dec. 1997, p. 3. 16 OAS, ‘Draft American Declaration on the Rights of Indigenous Peoples – Working document comparing the original draft of the Inter-American Commission on Human Rights, proposals by the states and by the indigenous representatives, as well as the proposed draft by the chair of the working group to prepare the draft American Declaration on the Rights of Indigenous Peoples’, OEA/Ser.K/XVI GT/DADIN/doc.53/02, 9 January 2002. 17 United States, ‘Comments of the United States delegation’, OEA/Ser.K/SVI GT/DADIN77/02, 28 March 2002.

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INDIGENOUS RIGHTS AND THE PROMISE OF A LIMITED AUTONOMY MODEL intend to actually seek these goals. Indigenous groups have also rejected cognates such as ‘populations’ because the term does not connote a strong sense of community and history. This fundamental difference has proved insurmountable so far in the UN negotiations, but States and indigenous groups have made recent progress in the OAS, as I detail below. In a similar vein, some States have objected that the term ‘rights’ is sometimes applied to social goods that constitute goals, and some have objected to the concept of collective rights. According to official comments, for example, ‘the United States considers it highly preferable to use the term “rights” only with respect to those duties owed by a government to its people that give rise to legally enforceable remedies’.18 As a result, the United States has argued that the environments of indigenous peoples should be protected, but that such protection does not constitute a ‘right’. Although the United States is well-known for its suspicions about the language of rights, Canada has (less frequently) also expressed such concerns. For example, Canada has argued that neither ‘cultural integrity’ nor a ‘safe and healthy environment’ are rights.19 Instead, Canada has proposed that States proclaim their objective of protecting both cultural integrity and indigenous environments. This limited autonomy model differs from both the extensive autonomy model and the democratic integrationist model. Indigenous groups supporting an extensive autonomy model tend to object to the notion that self-determination should be negotiated with the state. Rather, they advance the proposition that autonomy should be absolute, and that indigenous groups should be trusted to use that autonomy responsibly to preserve the integrity and unity of the state. Integrationists, on the other hand, prefer to avoid the language of self-governance and self-determination altogether. Venezuela recently suggested, for example, that it might be better to drop the notion of self-determination entirely and substitute instead language that the state ‘shall acknowledge the existence of indigenous peoples and communities, their social, political, and economic organizations, their cultures, practices, and customs, languages and creeds, as well as their habitat . . .’.20 For the State to acknowledge the existence of indigenous organizations is quite different than the State granting autonomy to those organizations. At the same time, indigenous groups and democratic integrationists in the OAS have recently begun to accept the limited autonomy model as an appropriate political compromise, a topic I turn to next. 5. PROGRESS FOR THE LIMITED AUTONOMY MODEL Seeking to put a positive face on protracted and difficult negotiations that never seem to go anywhere, OAS diplomats have typically claimed that broad and complete exchanges of opinion on indigenous issues constitute progress. Even by somewhat more demanding standards, it might now be argued that the OAS is truly 18

Letter cited in supra note 15, 16 Dec. 1997, p. 5. Canada, ‘Comments by the delegation of Canada . . .’, supra note 14. 20 Venezuela, ‘Comments by the delegation of the Bolivarian republic of Venezuela’, OEA/Ser.K/XVI GT/DADIN-76/02, 27 March 2002. 19

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DARREN HAWKINS making progress. Compared with previous reports of negotiating sessions, the working chair’s report on the 2002 negotiations sounds nearly euphoric. He writes that the ‘Special Session has produced a significant political advance regarding the topic of self-determination. This concept has ceased being a point of contention and now represents a relational concept oriented toward the establishment of a renewed and fluid relationship between indigenous peoples and States. The majority of the representatives of States and indigenous peoples were in agreement that the self-determination of those peoples is conceptualized with respect to political integrity and territorial sovereignty of states.’

In other words, the majority of States and indigenous peoples have now accepted the limited autonomy model. Even more importantly, they agreed that this conception of self-determination forms the backbone of the document. Finally, the working group chair even ventured to guess that the OAS declaration would advance more quickly than the parallel process in the UN. One concrete manifestation of this compromise can be found in the April 2001 decision to replace the phrase ‘indigenous populations’ throughout the document with ‘indigenous peoples’.21 While seemingly a small step, it is one that the UN has not yet been able to take. More importantly, it marked the first time States accepted a limited autonomy model. By adopting the concept of peoples, States signalled their willingness to consider some form of self-determination for indigenous groups. At the same time, States insisted on a clause that disassociated the concept from implications found in international law that peoples are those who hold sovereignty and form States. Indigenous groups, in turn, accepted that self-determination did not include secession or an end to the territorial integrity of the State. Three political factors help account for the emergence of this compromise. The first factor facilitating the emergence of the limited autonomy model is the prevalence of democratic governments and the absence of domestic security threats in Latin America. Although indigenous peoples themselves have been a driving force behind the discussions on the draft declaration, it seems unlikely they would have had as much success during earlier historical periods. The year 1992 marked the 500th anniversary of Columbus’ voyage, but the first years of the 1990s also generally marked the triumph of democratic governments and the end of civil wars in the Western Hemisphere. Governments facing real or imagined security threats during the Cold War also adopted extremely repressive policies vis-à-vis indigenous populations – whether leftist governments as the Sandinistas in Nicaragua or rightist regimes as with Pinochet in Chile. The new democratic regimes are less concerned about internal security threats and more open to the demands of indigenous peoples due to concerns for their legitimacy and politicians’ interests in winning domestic support. The end of the Cold War helped bring more security and democracy to 21

OAS, ‘Report of the Chair’, 26 July 2001, OEA/Ser.K/XVI GT/DADIN/doc.23/01 rev.1, appendix III, pages 79−88.

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INDIGENOUS RIGHTS AND THE PROMISE OF A LIMITED AUTONOMY MODEL Asia, Africa, and the Middle East, but to a lesser degree than in Latin America. Governments in those regions still facing internal security problems and authoritarian regimes of all stripes are less likely to be attracted to a limited autonomy model. Second, political myths of self-determination for indigenous peoples are particularly strong in the Western Hemisphere, with the United States perhaps the pre-eminent example. Even while the US government was conquering and subjugating indigenous peoples, it simultaneously labelled those people sovereign and entered into ‘treaties’ with them as if routinely doing business with a foreign government. Those agreements have consistently utilized a discourse of sovereignty and some decision-making autonomy for indigenous peoples. Although this discourse was often a sham, powerless people have often found the high-minded rhetoric of their oppressors a useful tool in their struggle against authority. Third, the link between indigenous peoples and particular territory in the Americas is probably higher than between minority groups and territory in many areas around the world. It seems likely that autonomy on a range of issues works better for groups that are geographically concentrated rather than dispersed and intermingled. A recent declaration by European experts, for example, illustrated the possibilities of non-territorial autonomy by citing three examples: using names in minority languages, determining curriculum on minority languages and cultures, and minorities employing their own symbols.22 While not intended to be exhaustive, the extremely narrow nature of these examples serves as a warning to those who would try to devise non-territorial mechanisms for autonomy. One need only imagine granting autonomy over education, for example, to Latinos in the United States to see this point. Certainly, some minority communities would easily be able to erect their own schools, find their own teachers, and generate their own tax base. Yet millions of Latinos who live outside of the most concentrated areas would then be left trying to figure out how to put autonomy into practice in some reasonable way. Administering schools for a particular ethnic group scattered throughout a series of communities suggests not only administrative disaster but also a recipe for rampant racism. Although my evidence here is admittedly impressionistic, it seems that, comparatively speaking, indigenous peoples in the Americas tend to be geographically concentrated in particular areas – often ‘homelands’ on which they were confined without choice decades ago – that makes autonomy a more realistic possibility. It should be noted of course, that the practical possibilities of autonomy for geographically concentrated minorities in no way justifies ethnic cleansing or similar practices to achieve such geographic concentration.

22 Office of the High Commissioner on National Minorities, Organization for Security and Cooperation in Europe, ‘The Lund Recommendations on the Effective Participation of National Minorities in Public Life and Explanatory Note’, September 1999.

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DARREN HAWKINS 6. CONCLUSION: FUTURE PROSPECTS Reading the political tea leaves for the future is always a dangerous task, but it can also be a useful one. In this concluding section, I attempt to identify and summarize the particular trends and problems currently surrounding indigenous rights issues that may offer insights into future developments. The first point is that while progress has been made, the emerging compromise around the limited autonomy model is still rather vague and fragile. Although OAS member States have apparently accepted, in principle, a limited autonomy model, the most serious question is how to put that model into practice in concrete and specific ways. Important differences remain, though it is difficult to judge the extent of those differences due to the absence of specific information from the most recent negotiating session held in March 2002.23 In particular, some of the largest differences exist not among States, but between States on the one hand and indigenous groups on the other. Indigenous groups are still resisting definitions of key concepts such as indigenous peoples, lands, territories, and self-determination. Any definition, in their view, would fail to capture the diversity inherent in their societies and would unnecessarily limit their rights by excluding topics at the definitional stage and by failing to allow them to define themselves and their rights. States have responded by arguing that conceptual clarity is essential to any legal agreement and by pointing out abuses that could result from the lack of clarity. The position of indigenous groups is understandable, but seems incompatible with the prevailing international legal culture and the basic interests of States in which defining of concepts is fundamental. States will be unwilling to completely ignore indigenous preferences on this issue, and so are likely to prefer no agreement to an agreement that lacks basic definitions. Ultimately, it seems that indigenous groups will need to choose whether they prefer no agreement or an agreement with some definitions. Typically, analysts have suggested that the way out of the negotiating impasse at the UN is to increase indigenous voices in state representation and to increase the number of indigenous groups at the negotiating table.24 While this suggestion represents a morally appropriate sentiment, it is a political non-starter. States still control the nature of the agreement and are not going to relinquish it; already they have given indigenous groups a much larger voice that any other NGOs receive in other international negotiations. In the end, indigenous groups are likely to be faced with the choice of compromising some of their positions on specific issues or never seeing an agreement. Could the limited autonomy model gathering support in the OAS be applied to other areas of the world or to more general minority rights conventions? The model certainly shows political promise as a compromise position between approaches that ignore autonomy and those that prefer extensive autonomy. States that fear extensive grants of autonomy and minority groups that lack influence within the state might 23 24

OAS, ‘Informe del presidente’, 22 May 2002, OEA/SER.K/XVI GT/DADIN/doc.82/02. Barsh, supra note 11; Debeljak, supra note 11.

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INDIGENOUS RIGHTS AND THE PROMISE OF A LIMITED AUTONOMY MODEL both be attracted by a compromise position guaranteeing some minority autonomy. For many minority groups, it would be an improvement on the status quo in which they enjoy few rights and little influence – but it would also mean an end to any quest for their own independent state and sovereignty. For States, it would mean yielding some decision-making authority on some issues, but it could also help end secessionist threats and produce more governable societies. Despite the substantial promise of this pragmatic approach, serious difficulties might impede its adoption in other areas of the world or its application to all kinds of minority groups. As discussed above, three features of American politics and society have contributed to the emergence of the limited autonomy model. The constellation of these three conditions – democratic governments, public myths that accommodate autonomy, and tight links between territory and autonomy – are unlikely to be found in many places or to apply to many other minority groups. The absence of one or more of these factors elsewhere may limit the model’s generalizability. At the same time, it is possible that these conditions helped give rise to the model, but are not necessary for its adoption. Ultimately, one of the most far-reaching effects of these negotiations may be to give rise to new understandings of ‘self-determination’. Recent constructivist scholarship suggests that widely shared understandings among States structure international interaction in ways that are as profound and far-reaching as the material distribution of power, if not more so.25 States create these shared understandings through iterated interactions and intensive negotiations, and selfdetermination is one of the most important concepts in this set of understandings about the international arena. Traditionally, self-determination has been associated with statehood and sovereignty, but limited autonomy advocates are attempting to redefine the term. To the extent that advocates succeed in disassociating selfdetermination with sovereignty and linking it instead to autonomy and group rights, a potentially far-reaching shift will have occurred in state understandings of international affairs. Already, such a redefinition appears to be taking hold in the Western Hemisphere. The scope and consequences of this change are of course unknowable, but undoubtedly worth watching.

25

For one of the most influential statements, see Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999).

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THE QUESTION OF INDIGENOUS AUTONOMY IN LATIN AMERICA José Bengoa 1. FROM ISOLATION TO AUTONOMY During many centuries Latin American indigenous people lived isolated from urban centres and capitals and even from State jurisdiction. They were referred to as the deep America. There, in the immensity of jungles, unexplored coasts and mountain ranges lived the descendants of the oldest indigenous cultures of the American continent. In the 1940s the Mexican anthropologist, Manuel Aguirre Beltrán, named such places the ‘refuge areas’ of indigenous peoples. For centuries they lived in those areas under some sort of ‘forced autonomy’ without much contact with the western world. During a large part of the 20th century indigenous’ pleas and State actions were directed towards greater integration between the indigenous communities and societies. In numerous occasions the policies had an assimilatory character instead of searching for a respectful integration of the indigenous peoples into a global society. In any case, indigenous peoples demanded for ways to communicate between their communities and the city, as they thought, it would enable their agricultural commerce to develop. They also demanded schools, local police forces and courts of law ; in sum, they sought an active presence of the State in their remote areas 1.1. Refuge Areas and Opening of New Borders In many Latin American countries these ‘refuge areas’ remained isolated well into the 1960s, that is, when the countries were experiencing a relative modernity. This is the case of the Amazon’s river region where many indigenous populations lived in total isolation until the beginning of the 1960s.1 The same occurred in other places as well, although they are not so well known cases. For instance, in Northern Chile the first road that opened the high plateau home of the Aymaras community was built in 1967. As a consequence, these communities lived a very isolated lifestyle, they communicated almost entirely in their own language, produced their own goods

1

Gaia Foundation, Indigenous territorial rights and ecology in the tropical forests of America (Bogotá, 1992). The book is a complete study of the situation of the Amazonian territories, which deals with the tenancy of the land, demarcation of the indigenous territories and environment situation of the indigenous communities at the beginning of the 1990s. The study is the result of the meeting in Villa de Leyva, Colombia, and it united specialists and indigenous leaders from Brazil, Colombia, Panama, Ecuador, Peru and other countries. Unfortunately, the diagnosis continues after a decade to be valid, which is worrisome.

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JOSÉ BENGOA and survived according to traditional systems, celebrating their own rituals and festivities. These were common aspects in many ‘refuge areas’ of Latin America. The opening of these isolated areas had a strong impact on the State’s behaviour and commercial activities, especially affecting the indigenous population. In less than a decade, parts of the Amazon and its resources were wiped out and the native population was confronted with extremely difficult situations. The indigenous peoples were very vulnerable since they did not possess any kind of intercultural resources needed to manage the new situation. Such vulnerability had also a biological character, since they lacked immunity against viruses brought by the larger population. In this context of new border openings and extreme vulnerability, emerged the first ideas regarding indigenous autonomy, autonomous territories, or shelters. In general, the idea was to develop territories capable of protecting indigenous peoples from the voraciousness of the entrepreneurs, colonists, extraction companies and other forms of the expansive capitalism at that period of time. As a consequence, in most cases, these territories were declared National Parks in order to protect the flora and fauna and ‘by addition’ their inhabitants. Policies as such were applied in the Amazon region and in coastal areas, as for instance, the Colorados in Ecuador, but were soon criticised, not only by ecologists and environmentalists but also by the indigenous peoples who argued that human beings were being treated as nature. 1.2. The First Experiences of Autonomy The first territories with some kind of territorial autonomy and with an internal organization emerged from these failed experiences and they came to constitute to a great extent, models for the forthcoming experiences. In Panama, the Kunas, Embera and Guaimi communities lived in extreme isolation, which led the government, at the end of the 1960s, to establish a system of autonomy known as ‘comarcas’ (the autonomous administrative divisions comprising a number of municipalities). This is a very isolated area of the Americas, the only without connecting roads to the southern neighbouring country, Colombia. In the archipelago of San Blas, one of the first experiences of indigenous selfdetermination took place. The Kunas ‘comarca’ was created and was facilitated to a great extend by the remoteness and inaccessibility of the place, the strong participatory tradition of the Kunas and in some way by the structural weakness of the central government of Panama that delegated to the indigenous population the control and management of these regions. International and well-known NGOs, such as Cultural Survival, provided resources and expertise supporting that experience, which will be mentioned below. For many decades the Salesianos Fathers had developed a mission in Ecuador on the riverbanks of the Napo, a tributary to the Amazon river, with the indigenous Shuars, earlier known and misnamed as ‘Jivaros’. The project started to develop in this region based on a radio broadcasting station that aired its messages in the indigenous language and was meant especially for the Shuars or Shuaras. When the central State, oil companies, colonists and 352

THE QUESTION OF INDIGENOUS AUTONOMY IN LATIN AMERICA entrepreneurs started to invade the area, the building of a Federation of communities was thought to serve as their defence and protection from the further invasion of their land, cultures and resources. The Federation, supported by religious communities of missionaries, negotiated with the State and the ruling government of that time to give collective title deeds to the indigenous, which meant that a sort of Shuara territory was established. Although it was never achieved, the Shuar Federation, as the organisation was called, was transformed into some kind of selfgovernment system of the Shuaras communities’ territories. These two successful examples of indigenous policies led to the evaluation of territorial autonomy during the 1960s and beginning of 1980s. As a consequence of the Miskitos community in the Atlantic coast of Nicaragua and other indigenous groups opposition to the new Sandinista government’s policy of annexation, the Atlantic coast was declared autonomous. In this way, becoming the first territory with its own judicial system established in the national Constitution. A few years later, in 1990, as Colombia reformed its Constitution, a system of territorial autonomy called ‘indigenous resguardos’ was included in it. This institution and denomination with roots in the Spanish colonial heritage, was given a new dimension. The Spanish colonial structure was similar to the concept of indigenous ‘reserve or reservations’ found in the USA and other countries. It was a system for the protection of the indigenous peoples and simultaneously a system of separation and isolation from the rest of society. The 1990 Constitution modernises this concept by establishing protected territories where the indigenous peoples are able to develop their own policies, exercise self-governance and reproduce their cultures. They enjoy a certain amount of independence from the State’s administrative organisation, which will be shown below. 1.3. The Emergence of Indigenous and Autonomy ‘The emergence of indigenous in Latin America’,2 which came about by the end of the 1980s and especially during the 1990s, was characterised by an indigenous awakening which resulted in the mobilisation of indigenous populations, the creation of indigenous organisations and indigenous requests. This indigenous awakening reached a higher point at commemorations and festivities of the Fifth Centennial in the memory of Christopher Columbus’s arrival to America. For the Europeans this was a celebration of discovery while for the indigenous population it was a reminder of 500 years of Resistance. It was in this context that very intense mobilisations emerged in Ecuador, Guatemala, Chile, and Bolivia, and in 1994, an indigenous insurgency broke out in the high plateau of Chiapas, in Mexico. The concept of autonomy appears to be once again at the centre, when discussing indigenous peoples programmes.

2

Bengoa, José, The indigenous emergence in Latin America, (Fondo de Cultura Económica, Santiago, México, 2000). This book presents the process of reconstruction of a new indigenous conscience in Latin America.

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JOSÉ BENGOA For the indigenous movements, autonomy seems to stand for the ultimate recognition by society and the State of their collective rights, the uniqueness of their culture and their capacity to exercise self-determination. Autonomy appears as a goal after the construction of their own personality. The message has changed as well as their request. The indigenous are no longer demanding to be integrated but rather the opposite, they demand to be protected from the perverse effects of integration. When they were asking for roads to transport their products they did not imagine that this would enable dozens of colonists, businessmen, troublemakers and others to extract and usurp a large part of, if not all, their resources. Integration by experience turned into destruction. It was not only a cultural destruction, but also a destruction of their resources and often, a biological and physical destruction. Starting in the 1950s, there was a massive migration of peasants and indigenous peoples into the cities. There, many of them could study and prepare themselves and also learn about other’s experiences. As a result, at the end of the 1980s, an indigenous leader totally different from earlier times started to take shape. This new leader is a educated person, having a knowledge of the Western Culture and sometimes graduate studies. A person who acts admirably both within his rural community and in the capital city. A person who establishes relations with foreigners. It is an expanded stratum of leaders who leads the ‘indigenous emergence’ in the region. They know what occurs in other parts of the world. Other indigenous groups’ experiences with autonomy and in particular that of Greenland has had has an impact on the indigenous elite. Many of these leaders attended congresses and reunions where they have the chance to come in contact with the experiences of other indigenous peoples. An important element in this respect was the opening of the UN’s Working Group on Indigenous Populations, which meets annually in Geneva, and brings together people from all over the world. There, the concept of autonomy transforms into a key concept commonly used by the indigenous leaders. The massive presence of indigenous peoples in cities has reconstructed an ethnic identity in many countries in Latin America. The discourse on new identities is back on the agenda due to migrations and immigrations. The main indigenous reaffirmation, indigenous autonomy, emerges in the context of new contacts of indigenous peoples with other cultures. 1.4. Autonomy and Ethnic Citizenship Indigenous autonomy is a main political theme in many Latin American countries these days.3 De la Peña inquires: 3

There is a numerous literature about this subject matter. The most important meeting about the issue of indigenous autonomy was held in Nuuk, Greenland, in 1991 and it was organised by the UN Working Group on Indigenous Peoples and the autonomous government of Greenland. The discussion in the world meeting for Human Rights in Vienna, 1993, also made reference to the issue of self-determination of the Indigenous Peoples. The international discussions during all these years have dealt with the issue of indigenous autonomy and the

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THE QUESTION OF INDIGENOUS AUTONOMY IN LATIN AMERICA ‘The question is, if now at the end of the century and millennium, in Mexico, for the first time it is feasible to talk about the viability of an ethnic identity composed of a socio-cultural citizenship that admits ethnic plurality. There are many signs in favour, although there are many 4 obstacles as well.’

This subject matter is complex. The debate is ongoing. Indigenous communities have made a strong claim for autonomy at international meetings: Ms. Marta Sánchez from the Coordinadora Nacional de Mujeres Indigenas of Mexico (CNMI), brought to the attention of the UN’s Working Group on Indigenous Populations, that Mexico must confront a double challenge since many massacres have been committed and the society is getting use to violence being used against the indigenous population, to the point that violations of their human rights is considered to be a normal occurrence. As a consequence, it is required that the autonomy of the indigenous population be reasonably recognised. 5 1.5. From the Question of Development to the Question of Autonomy In the countryside, in the rural communities, indigenous peoples of the 1960s and 1970s did not speak about autonomy. They spoke about development, road construction, schools and integration into a global society. In the cities, urban organisations, immigrant organisations, and universities, indigenous peoples started to talk about indigenous rights, autonomy, political control, participation in national politics, multiethnic societies, multiculturalism, multicultural education, indigenous territories, territorial rights, cultural heritage, in sum, about collective rights.6 Young educated indigenous peoples began to build borders between indigenous and non-indigenous. These individuals with new ideas and outlooks returned to the

self-determination of the peoples. See, Voices of Earth (Amsterdam, 1995). This book gathers together the debates from a world seminar, which as this place of publication implies, was held in Amsterdam. A very important book about the issue of autonomy just appeared in Mexico. The author is Héctor Diaz Polanco, professor at CIESAS (Siglo Veintiuno Editors). Unfortunately we haven't yet been able to analyse this book. 4 Guillermo de la Peña, ‘Notas preliminares sobre la ciudadanía étnica’ (Guadalajara, 1997) p. 9. 5 UN’s Indigenous Peoples Working Group, Friday, 31 June 1998, Morning Session, UNPO Monitor. Besides this speech about the autonomy as the solution to the human rights problems, there are many others, both in this international forum and in others where a new Latin American indigenous speech is held. In Mexico the issue is of such importance that the ‘Plural Indigenous National Assembly for the Autonomy’, ANIPA, has been created. 6 In the origins of the concept of autonomy lies the European experiences of autonomy of indigenous peoples, from which the Inuit experience, in Greenland, is the most relevant. The UN meeting on ‘Indigenous Autonomy’ was held in Nuuk, Greenland in 1991, in which we had the pleasure to participate. The main Latin American speaker was Augusto Willimem Diaz from Guatemala, who exposed the meaning of this new naming. Documents of the UN’s Working Group on Indigenous Populations, 1992.

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JOSÉ BENGOA countryside. The urban indigenous leadership thus established new types of relations within their communities. 1.6. The Meaning of Indigenous Autonomy What does autonomy mean to the indigenous peoples in Latin America? It is a confusing concept. For some, it is a kind of relative independence, a sort of selfgovernance. For others, it is only an ethnic affirmation. There are those, who speak of ‘double citizenship’, that is, citizens of the country entitled to all rights as well as citizens of the indigenous community in possession of all the applicable rights.7 Some people, limit the autonomy concept to the local level while others talk about a regional autonomy, this being a form of federalism. In Colombia, autonomy means an internal control by indigenous peoples of indigenous territories, so called ‘indigenous resguardos’. The same interpretation is given in Panama with the ‘comarcas’. The discussion in Mexico after Chiapas and especially the treaties of San Andrés Larraínzar, has confused the debate even more. The discussion of autonomy in industrialised countries by indigenous people has made this debate even more complex, since in these countries a new form of autonomy has been exercised which is related to a peoples’ right to selfdetermination. In Greenland, the autonomy of the Inuit is a practical territorial segregation. In Australia, Canada, New Zealand and other industrialised countries autonomy is discussed in the context of surrendering large territories to indigenous peoples with very developed systems of self-governance, as for instance the Sami Parliament in Norway. Similar cases exist in Latin America in only a few places, such as in the Amazon and the tropics, the Atlantic Coast, and the Kuna administration. The majority of indigenous peoples share territories with nonindigenous population. In Chile, as in many other countries, there is no single region where the indigenous population is more numerous than the non-indigenous population. Indigenous autonomy has transformed, nonetheless, into a symbol of struggle and reaffirmation of the will to maintain an indigenous identity. In practice, the struggle for autonomy constitutes the fight for indigenous rights, which are different from the rights of all other national citizens. The recognition of these economic, cultural and political rights is the main content of autonomy. It is therefore, a very complex matter, which can range from a claim to a separate or autonomous territory apart from the rest of the country to a search for basic rights, which permits, in practice, the ‘de-colonisation’ of Latin American societies. In the ‘indigenous emergence’, autonomy is the most radical and strong element concerning the request for transformation of Latin American society as a whole. These societies were built on the base of a colonial segmentation of their population. They were republics founded on a colonial relationship. The indigenous emergence of the 1980s, thus, is questioning the basis of the social and political foundation of Latin American countries. What will happen with this process? This is not easy to 7

Guillermo de la Peña, ‘Notas preliminares sobre la ‘ciudadanía étnica’, (Guadalajara, 1997).

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THE QUESTION OF INDIGENOUS AUTONOMY IN LATIN AMERICA answer, since various elements are involved, such as repression, co-optation, oblivion, and the hope of a possible transformation into a more just future. 2. THE CONSTITUTIONAL REGULATIONS AND CHANGES8 The Latin-American countries, as it was mentioned in the previous chapter, began to include the indigenous populations, in one way or another, into the new constitutional regulations of their legislative agendas. In many cases, constitutions were changed to the extent that the indigenous populations were mentioned and thus given some kind of legal recognition. In other countries, legislative changes were introduced only with regard to specific laws and in some cases only in respect to regional laws.9 2.1. The Constitution of Colombia In 1991 Colombia adopted a new Constitution. During the hearings and discussions held, the question of indigenous and Afro-Colombian communities was incorporated in a very active way. The text mentions that: ‘the State recognises and protects the diversity, ethnic and culture, of the Colombian nation’. Although the Constitution does not include recognition of specific rights, it constitutes the leading example among judicial reforms in Latin America. In practice, it develops a participatory system of these communities, which has been fairly efficient. Indigenous territories and numerous rights related to self-determination in accordance with their traditions and customs, are recognised in this Constitution. The most important text is perhaps Article 330, which states: ‘In conformity with this Constitution and the laws, the indigenous territories will be governed by councils and regulations formed in accordance with the uses and customs of their communities, exercising the following functions: 1. To watch over the application of legal norms with respect to the use of land and population of their territories. 8

A complete study has been published a short time ago by the Instituto Indigenista Interamericano under the leadership of anthropologist José del Val. The title of this voluminous book is ‘Indigenous Peoples and constitutional rights in Latin America: an outlook’, (Mexico, 2000). The author and the organiser of the material is Cletus Gregor Barié. The main question of the study is the pedagogical method for the laws that have been implemented in the region. It offers a lot of current legal information and data about the population in question and every one of the countries. It can be ordered from the Institute, at [email protected]. 9 It is the case of the Argentinean provinces that have an indigenous population, for example in the north, having their own laws, some of which are pretty progressive. For instance, we know that the Aboriginal Law of the Formosa province facilitates the transfer of land from the State to the indigenous.

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JOSÉ BENGOA 2. To design the policies, plans and programmes of economic and social development in their territories, in harmony with the National Plan of Development. 3. To promote public investment in their territories and to watch over its responsible execution. 4. To observe and distribute their resources. 5. To watch over the preservation of their natural resources. 6. To co-ordinate programmes and projects put forward by the different communities in their territories. 7. To collaborate with the maintenance of public order within their territory in accordance with the instructions and dispositions of the National Government. 8. To represent the territories before the National Government and the remaining entities in which they are integrated; and 9. Those functions as directed by the Constitution and by law.’

The ‘councils’ have been regulated during the last years and have been created and implemented in many ‘indigenous resguardos’. Lawfully those territories are designated as ITE, Indigenous Territorial Entities, and have the same administrative value as municipalities, and other forms of territorial character. It is interesting to point out, among many other things, that according to Article 22 of the Colombian Penal Code, that these ‘councils’ may have their own judicial processes, establishing different kinds of sentences for indigenous persons who have committed some duly stipulated offence or crime. The Colombian electoral system, established by the 1991 Constitution, likewise installed a system by which indigenous persons can directly elect their own senators to the national Parliament. This system has been used ever since. Article 171 of the Constitution provides for the election of two indigenous senators elected in special constituencies for the indigenous communities. The candidates must have held an administrative office in their own communities, or have been the leader of an indigenous organisation. 2.2 Other Constitutional Arrangements Many constitutional reforms were introduced at the beginning of the 1990s. It was a time when the countries were either returning to democracy after having experienced authoritarian regimes or after having seen the need to reorganise their political structure. These reforms did not exclude indigenous peoples, upon which a certain formal recognition was conferred.10 Thus, the Argentinean constitutional reform (1994) recognises the ‘ethnic and cultural pre-existence of the Argentinean indigenous peoples’. That of Bolivia (1994) defines the country as a ‘free, independent, sovereign, multiethnic and 10 Perhaps the already commented Fifth Centenary of the Discovery of the America was not far from this. To be added is the action of the Catholic Church, in particular the one, which steered many declarations in favour of the indigenous.

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THE QUESTION OF INDIGENOUS AUTONOMY IN LATIN AMERICA multicultural nation, constituted as a unitary republic, [that] adopts for its Government the democratic representative form, founded on the union and solidarity of all Bolivians’. That of Brazil (1988) contains in its Article 231 a detailed catalogue of the rights recognised to indigenous peoples. That of Ecuador (1998) defines the country as a ‘sovereign, unitary, independent, democratic, multicultural and multiethnic state with guaranteed social rights’. That of Guatemala (1985) declared that Guatemala was formed by different ethnic groups among which were the indigenous groups of Mayan origin. It has established, subsequently to the treaties, the recognition of multi-ethnicity and multiculturalism.11 That of Mexico 11

The new Constitution points out in Article 1. The Nation. Guatemala is a multiethnic, multi-cultural and multilingual nation. The State of Guatemala expresses the diversity of the Nation in the framework of its national and territorial unity. ARTICLE 2. Article 2 has changed and it reads now: Article 2. Protection for the peoples and person, and duties of the State. The State is organised to protect the person, family and the peoples; its main goal is the realisation of the common good. It is the duty of the State to guarantee for the peoples and the inhabitants of the Republic the right to life, liberty, justice, cultural identity, the effective participation in the national public life, security, peace and integral development. ARTICLE 3. Article 66 is changed, which falls under the title: ‘About the multiethnic, multicultural and multilingual Nation’ Article 66. Recognition and respect for the indigenous peoples. Guatemala is made up of various ethnic groups, among them indigenous groups of Maya, Garífuna and Xinca descent. Within the national framework, the State recognises, respects and promotes the right of the indigenous peoples to a) conserve, develop and transmit to their descendants their cultural identity b) built their own social organisation forms and manage their lands and own matters in accordance with the own legal order and historical traditions c) use, conserve and develop their languages, dialects, costumes, art, science and technology, and d) be consulted each time new legislative and administrative measures are adopted and which can affect them. The State recognises and respects the authorities, spiritual guides and representatives of the indigenous peoples, and guarantees the free election of the same in accordance with their own norms and methods, such as the right to lodge cultural objection in order to defend values and fundamental principles of their culture. The State recognises, respects and protects the different forms of spirituality of the indigenous peoples and guarantees the free access to sacred places, ceremonial centres and temples for the ceremonial practising, as part of their cultural heritage, historical and spiritual. The State guarantees the participation of the indigenous peoples to the preservation and administration of their ceremonial centres and temples. A special law will regulate this subject matter. An issue of high importance is the recognition of the Indigenous Municipalities to which have been conferred some autonomous rights. Under the title: Municipalities and autonomy, the Constitution points out: a) The Municipality is recognised as a field of government, given the faculty not only to administer but also to govern through the Town Council. b) The figure of State Laws is created in municipal matter (delimited to the issues that are addressed in the five subsections of the second part of the mentioned article).

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JOSÉ BENGOA (1992) states that the ‘Mexican nation has a multicultural composition originating in its indigenous people’. That of Nicaragua (1995) recognises the existence of the indigenous peoples and guarantees their right to maintain and develop their own identity and culture, to hold their own social administration and administer their local matters, as well as to enjoy, use and maintain the common forms of their land. That of Panama (1994) asserts that the ‘state recognises and respects the ethnic identity of the national indigenous communities’. That of Paraguay (1992) recognises the existence of the indigenous peoples and defines them as groups pertaining to a culture prior to the formation and organisation of the Paraguayan State. That of Peru (1993) declares that the State recognises and protects the nation’s multiethnic character and multiculturalism. In general the constitutions are declaratory and recognise multiculturalism, but they do not recognise explicitly the indigenous peoples’ rights. The larger part of the recognition struggles between maintaining the State’s unitary character and the society’s multiethnic character. No final solution has been provided, yet. One author states: ‘What can the reach of this recognition be? It is obvious that, since the constitution recognises the ethnic identity and the own culture of its indigenous peoples, it bestows on the State the mandate to formulate indispensable laws so that the recognition translates into concrete rights. Although this may be a matter of legislation – whose development for now is incipient – it is important to emphasise that all recent constitutional reforms have considered it indispensable to incorporate in its own text some essential norms by which that identity and multiculturalism is expressed. This way, despite the lack of legislation the courts have been able to develop a rich jurisprudence, which has permitted the affirmation of some fundamental rights demanded by the indigenous peoples, as it is demonstrated by numerous rulings of the Supreme Courts and Constitutional Tribunals.’

Some constitutions have attached more explicit recognition to the ‘exceptional relation that exists between indigenous peoples and their land and territories’, which has been useful when delivering judgements, some of which have come as far as to the Inter-American Commission and the Inter-American Court of Human Rights. The recognition of indigenous languages, which in some cases have an official language status, has made possible bilingual education and the use of American languages possible through the media, as it happens with Quechua in Lima and Aymara in La Paz. In Paraguay, Guarani is traditionally spoken side by side with Spanish. The Constitution, adopted in 1992, recognises the existence of the indigenous peoples as groups whose culture existed prior to the creation of the Paraguayan State. It establishes also the right of the indigenous persons to develop their ethnic identity in their respective habitat and speak their language, which is an official language of the country. There are some constitutions that have established a special status for indigenous territories. This is the case of Nicaragua where the Constitution has 360

THE QUESTION OF INDIGENOUS AUTONOMY IN LATIN AMERICA established broader rights for the communities on the Atlantic Coast, which administer their own affairs according to a system of self-government. In both Mexico and Bolivia reforms to the Constitution have been adopted in order to adapt judicial systems to the indigenous traditions, making use of indigenous customs and uses and above all using indigenous languages during trials. Article 171 of the new Bolivian Constitution asserts that the ‘natural authorities will be able to exercise administrative functions and apply own norms as alternative solution to conflicts, in accordance with their own customs and proceedings’. This arrangement has been applied successfully in some Guarany communities in Bolivia. The communities have formed a federation of communities and have very developed systems of self-government, self-development and application of own their laws.12 Equally, the Law of Popular Participation was promulgated in Bolivia on 20 April 1994. Article 3 specifies that the Base Territorial Organisations (BTO) are subject to popular participation. The BTO organisations encompass, among others, the indigenous organisations, which might be constituted according to their own customs and traditions. By virtue of this law, indigenous peoples and their authorities can exercise public administrative functions. The beginning of the 1990s heralded, maybe due to the Fifth Centenary of the Discovery of America, a period in which many constitutional changes occurred in Latin America. The observers of this process, with only a few exceptions, have noted that there were not many practical consequences thereof. The majority of constitutional reforms did not imply changes in the local laws that regulate the practical matters of indigenous peoples. 3. LAND, TERRITORIES AND NATURAL RESOURCES Traditionally, the issue of land has been the most complex subject matter and the main demand made by indigenous peoples in Latin America. Recently, this question has acquired more complex dimensions. Traditionally the concern was the protection of indigenous land from the voracity of buyers or simply invaders. Nowadays the issue presents two dimensions, territorial and environmental. The territorial dimension involves considering land as a material resource, a cultural and political necessity for the existence of a people. This is what is called ‘territory’. It is no longer the productive value of the land which is foremost, but 12

The legal programme of the National Secretary of Ethnic Race and Generations Issues, tries to establish a national system of legal assistance in order to facilitate the access to the justice administration for the indigenous people and improve the capacity of the authorities in charge of attending the indigenous matters at administrative legislative, police and judicial level. This National Secretary of Ethnic Race and Generations Issues and the Confederation of Indigenous Peoples of Eastern Bolivia (CIDOB) signed a co-ordination agreement on 18 April 1994, through which the Secretary commits itself to consult the Indigenous People’s Consultative Council composed by one representative of each ethnic group, with regard to any plan of action, project or program in these regions.

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JOSÉ BENGOA instead its value as a space of reproduction of social belonging or directly, as some point out, belonging to the ‘Nation’.13 The second dimension is the environmental dimension. The indigenous movement, which is strongly related with the environmental movement, has developed a discourse not only about claiming indigenous land, which generally has been very degraded, but also its conservation, improvement and recuperation. Finally, the idea is to ensure sustainable development. This idea is linked with the accelerated expansion of extractive companies that, for the most part, have been established in indigenous territories. The ILO points out in one of its briefings that: ‘Together with the invasion of the ancestral land, one of the biggest aggressions against indigenous peoples is the plundering of their natural resources, which has been and continues to be the subject of greed of powerful economic interests. It is often the origin of bloody and painful incidents. In many cases the habitat of numerous indigenous communities has suffered irreparable damage and the exploration and exploitation companies have been responsible for the destruction of the lifestyle if not of ethnocide. The jungle communities in particular have suffered the most from this aggression, but they are not the only ones. In more current times, thanks to the mobilisation of the indigenous peoples, the growing conscious about the necessity to preserve the environment and the power of the media, this plundering occurs no longer silently and we witness a healthy reaction.’

One of the most complex issues is ownership of natural resources. In all countries the ownership of natural resources in the subsoil is retained by the State. The same occurs with maritime and lake resources. ILO Convention No. 169 penetrated this complex issue prudently through Article 15: ‘1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources. 2. In cases in which the State retains the ownership of mineral or subsurface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair

13 The term ‘Indigenous Nation’ is used frequently, expressing the will of prominence of those to which they belong. In Ecuador the main organisation is called Council of Indigenous Nationalities of Ecuador.

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THE QUESTION OF INDIGENOUS AUTONOMY IN LATIN AMERICA compensation for any damages which they may sustain as a result of such activities.’

The above-mentioned issue has also been dealt with in some constitutions. The Bolivian Constitution recognises the right of indigenous peoples to the sustainable use of the natural resources of their land. The Brazilian Constitution establishes that ‘hydro resources, including energetic potentials and mineral riches in indigenous land may only be prospected and mined with the authorisation of the National Congress, after hearing the communities involved, and an economic participation in the economic results of such mining shall be ensured to them, as set forth by law’. The Constitution of Ecuador recognises the right of indigenous peoples to participate in the use, administration, and conservation of renewable natural resources found on their lands, be consulted in programs of non-renewable resource exploration and exploitation, and be ensured of their participation in the benefits of these activities; indigenous people may also receive compensation for the socioenvironmental damage caused by resource extraction activities. That of Nicaragua recognises the right of the communities of the Atlantic Coast to the enjoyment, use, and benefit of the waters and forests on their communal lands. As it can be seen, the recognition is not for the exclusive ownership or use of natural resources. In fact, there is a requirement to ‘consult with the communities’, which is very complex when it comes to ostensibly poor indigenous sectors who can easily be manipulated by either public or private interested agents. The cases of conflict over the use of natural resources have been previously mentioned, as summarised by the ILO briefings above. During a seminar, Maria Luisa Acosta presented a case brought by an indigenous Community of the Nicaraguan Atlantic Coast against a timber concession that the government of Nicaragua made in favour of a Korean company, which affected the Community’s communal lands. One of the major difficulties for the plaintiff during the legal process concerning the protection of their rights, arose from the fact that although the 1987 Constitution recognises the right to ancestral territory for the communities of the Atlantic Coast, ten years after the Statute of Autonomy for those regions was promulgated and adopted, it still has not been regulated, which makes its application more difficult. The affected community did not possess the title deed to the lands, which it traditionally occupied, and the only legal resource that could be invoked was a non regulated constitutional text. After many inconveniences and the rejection of many appeals, the Constitutional Court of the Supreme Court finally received an appeal of amparo and declared this concession void for not having respected the obligation to discuss it with the Plenary Council of the Region. Despite this, the administration continued with the concession and the exploitation of timber really started. The concession was finally cancelled in February 1998. In March 1998, the company awarded the concession announced that it was cancelling all its operations in this area. Despite the positive result for the interested indigenous community, the case warrants further examination. The Supreme Court did rule in favour of the community based on the procedural matters, however it did not pronounce itself over the more substantial 363

JOSÉ BENGOA issues: the right to ancestral territory and the enjoyment of its natural resources. Ms. Acosta concluded by emphasising that a law of demarcation is indispensable to complete the constitutional provisions. As she observes, a democratic State must offer legal remedies to resolve conflicts that arise from exploitation of territories where indigenous communities are claiming historical rights. The lack of such remedies would increase the possibility of reopening old wounds. There is no doubt that this is one of the pending issues in Latin America and, if it is not resolved adequately, it will be a source of grave conflicts in the future. The indigenous demand for the management of their natural resources, which comes into dispute and contradiction with the exploitation of these resources by companies and also by the State. It is not easy to generalise and establish protocols for how these complex issues should be resolved. However, if the territorial rights of the indigenous peoples are not respected, these communities are deprived of resources that legally belong to them. The demand for land continues to be one of the most important issues on indigenous agendas. In June 2001, in Ecuador, the Confederation of Indigenous Nationalities of Ecuador (CONAIE) established a platform, which can be seen as a model, not only due to its reach but also because of its degree of detail. ‘Validation of the deeds to the ancestral lands of Tambaló, Carihuairazo de Chiquicagua in Pichincha, the communities C. Toglia, C. Inga Bajo, As. Tamblón, in Chimborazo the communities named Corporation COCAN MAG-Pachamama, C. Tuculay and in Pastaza, those of Záparos, Rumiñahui, and Co-operative Guayusa. In Guayas, the community of Campo Alegre, in Sucumbíos, the lands of Nation Siona.’

In Comodato the demand is made for the lands of the Camp the Viñas-Tungurahua, UPCCC: CREA-Granja Burgay in Cañar. Also considered is the adjudication of lands that are subject to land trials in Pichincha, Azuay, Zamora, Sucumbós, and Loja. CONAIE demands to the State, the creation of a fund for the purchase of lands, and the investigation of the ancestral lands. In Chile, a law passed in 1993 created a Land Fund, which permits the State to acquire land from individuals and redistribute them without cost to the indigenous communities. The Government has promised to give 150 thousand hectares of land. The matter is not of petty dimensions. In the majority of the countries with an indigenous population there are old land trials, which are the source of numerous conflicts. The search for restitution measures, such as the Land Fund, could be useful in the process of solving these questions. 4. EDUCATION AND CULTURE Many Latin American countries have adopted measures related to education and teaching for the prevention of discrimination. It is thus necessary to point out, the policies that are adopted in the context of formal education, that is, the school system and the measures adopted in the context of education generally and 364

THE QUESTION OF INDIGENOUS AUTONOMY IN LATIN AMERICA especially with regard to education for adults and communal education.14 Although the processes are not autonomous, it is a commencement of cultural autonomy in the context of education. 4.1. Programs at the General School System With regard to school curricula some countries have taken specific initiatives with respect to: a) human rights programs regarding promotion and education, and b) indigenous peoples’ rights programs intending to abolish all kinds of discrimination. UNESCO has promoted the establishment of ‘cross contents’ in the curriculum, which analyses issues such as tolerance, discrimination against indigenous populations and racial discrimination, together with education in human rights. Some countries have incorporated subjects related to indigenous communities’ rights and other discriminated groups. The American Institute of Human Rights with headquarters in Costa Rica has carried out numerous promotional activities with respect to human rights education, bringing together teachers and specialists in order to establish a proper methodology of education. Not all countries have incorporated specific programs for education in human rights into their general educational plans. Despite this, the importance of the subject matter has increased. In some countries attempts have been made to incorporate cross contents or courses in these subjects. The following are non exhaustive examples that are limited by the available material: The Argentinean Human Rights Sub-secretary has as one of its objectives, ‘to incorporate education for human rights and democracy in all levels of formal education as the basis for citizens’ ethics, to guarantee human rights and to prevent violations’ (CERD/C/299/Add.11, p. 14.). A ‘National Educational Project for Democracy’ has been developed in Colombia, it is carried out in co-operation with the Presidential Council for Human Rights. The idea is to introduce an ‘axis of reflection’ in the school curriculum in order to ‘establish the education for democracy as a fundamental and mandatory course’.15 (In Panama, trough decree No. 2701 of 14 September 1990, created the Commission for the Protection of Education and Apprenticeship of Human Rights in all Educational centres (CERD/C/299/Add.1, p. 11.)) Numerous activities have been created in this field. In a multiracial country such as Trinidad and Tobago, the school materials in ‘social

14

Sources for the development of this section have been the reports that governments submit to CERD, Committee for the Elimination of Racial Discrimination. As it is known, the Latin American governments, which have signed the International Convention on the Elimination of All Forms of Racial Discrimination, must hand in periodical reports, which constitute a valuable official information source. It is quoted in accordance with the UN system, CERD and the numeration of the Documents. These Documents are public and we have gained access to them through the secretary of the institution. 15 CERD/C/257/Add.1, p. 34.

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JOSÉ BENGOA sciences that are used in elementary education, provide to the citizens education about the different races, religions and cultures of the society’.16 In the school programs in San Paolo, Brazil, a chapter dealing with the question of racism is taught. Additionally, a topic called ‘History and culture of Africa’ has been introduced in the school program. This has occurred in order to ‘point out the place of the African cultures in the construction of the Brazilian society’.17 Despite a general preoccupation for teaching human rights in schools, many things remain to be done. For example, there are no Latin American schools participating in the UNESCO project, which searches for the peaceful resolution of conflicts.18 Likewise, other projects regarding the teaching of human rights in schools have not had all the desired results. Many countries have developed educational programs for non academics to promote the understanding and better comprehension of the indigenous peoples and thus prevent discrimination. In its 1996 Report to CERD, Mexico describes the activities that were developed in this field by the Human Rights Commission.19 These activities consist of seminars, events, programmes, radio broadcasting, promotions, information spreading and other forms of education with respect to promotion of human rights and especially, indigenous rights. The Brazilian Government published two million copies of ‘handbook for justice’ in collaboration with the Brazilian Union of Judges, with the intent to teach the population its rights. There are many countries where initiatives have been undertaken through co-operation between NGOs and governments in order to publicise the Human Rights Declaration in different languages and spread the content of the Convention. 4.2. Programmes for Intercultural Education and Bilingualism Perhaps the main aspect is found in the implementation of programmes for bilingual intercultural education in many Latin American countries, aimed for the indigenous populations. For many decades the educational system in Latin America did not take into account the particularities of local cultures. Nor did it take into account the regional, ethnic or linguistic origin of students. In speaking of education, Latin American countries experienced a boom in the last century since elementary education was considered an essential part of the formation of the newly born nationalities. The school system had thus to ‘Castilianise’ the population and teach basic norms and the conceptual tools necessary to perform adequately in society. During that century, the school system boom reached even rural areas converting such institutions into an important instrument of linguistic and cultural homogenisation. 16

CERD/C/224/Add.1, p. 9. CERD/C/263/Add.10, p. 41. 18 UNESCO Examples of school based programs involving peaceful conflict resolution and mediation oriented to overcome community violence. Unesco Proyect 1996. 19 CERD/C/296/Add.1, p. 5. 17

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THE QUESTION OF INDIGENOUS AUTONOMY IN LATIN AMERICA During the 1930s it was found that isolation and the lack of linguistic communication were the main problems that afflicted and discriminated against the indigenous communities. In many Latin American countries, programs for special education were created for the indigenous communities to improve their knowledge of Spanish or Portuguese. This process was called ‘bilingual education’ since the indigenous language was used to build a communication bridge with the new language, the official language of the country. Nowadays, this is referred to in technical terms as ‘bilingual education of transition’ since once the official language is learned, the vernacular or mother language, is to be left aside. Beginning with the 1970s, a new tendency was seen in Latin America with respect to bilingual education. This was known as ‘intercultural bilingual education’. The goal was to ensure that indigenous children master both languages simultaneously. It also aimed to establish a respectful dialogue between the indigenous culture and the dominant national culture. Many of these programs have been developed and they express the ultimate level of non-discrimination in the school system. There are many initiatives in the field of intercultural bilingual education, which are organised by Ministries for Education as well as by institutions specialised in indigenous affairs, such as universities and NGOs. A group of southern universities has established a consortium, which is run at the University of Cochabamba in Bolivia, that works towards the development of graduate studies concentrating on specialising professors in intercultural bilingual education. Colombia is one of the regional countries having the relatively largest trajectory as regard to intercultural bilingual education experiences. Numerous laws have been passed in this country, addressing indigenous peoples education and the possibility for the indigenous peoples to auto-manage and adapt education to the necessities of the communities.20 They have also developed an assemblage of teachers specialising in intercultural bilingual education, curricula have been written in different languages, texts have been translated and there is a large quantity of linguistic research. Ecuador is another country that in the past ten years has created programs for intercultural bilingual education. The major difference here is that the programs have been brought into line and sometimes put into practice in accordance with the Specialised Governmental Agency and the Confederation of Indigenous Nationalities of Ecuador (CONAIE), which is extensively known for gathering the most diverse ethnic groups of this country. In Guatemala, where the indigenous population is very numerous, programs of bilingual education have been implemented (PRONEBI), in the framework of the peace accords and in particular the indigenous rights accords. A 1996 governmental report points out advances in indigenous educational areas, including the incorporation of 337,000 children in new bilingual and monolingual programs. (CERD/C/292/Add.1., p. 17.) According to data from 1992, 52 per cent of the 20

CERD/C/257/Add.1, p. 35 and 44.

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JOSÉ BENGOA population in Guatemala is of Maya origin. (CERD/C/256/Add.1.Pag.4). In the Ministry for Education, a department in charge of Intercultural Bilingual Education was established and ‘policies and strategies of intercultural bilingual education have been set up, which constitute the socio-cultural and educational route of the Maya, Xinca, Garifuna and Ladino population to build a democratic society, pluralist in the frame of a culture of peace and understanding’ (Ibid., p. 17). Special efforts have been made in the campaign for literacy for indigenous women through courses and seminars about their rights and other such activities. Special reference is made to the investments and activities of the Fund for Peace that has been implemented after the peace accords in Guatemala, which also made possible the construction of new schools and the implementation of school programmes within the indigenous environment. In Bolivia, another country whit a large indigenous population, an educational reform act was passed in 1994. It established an intercultural bilingual education in the Bolivian educational system. The act states that part of the ‘essential rationale of the Educational Reform Act is: to establish the democratic, participatory, intercultural and bilingual nature of national education, in response to national reality’.21 The goals of this reform are, among others, ‘[t]o acknowledge Bolivia’s ethnic and cultural diversity, by opting for an intercultural and bilingual form of education to satisfy the needs of the individual and of his community’.22 In Bolivia, the so called Educational Reform adopted in 1994 included the incorporation of cultural values for the creation of multi-cultural education. The indigenous populations’ right to participate in the planning and execution of the education system is recognised as well as the right to education in their own language. A project is being created with the participation of many indigenous organisations from the Orient, Chaco and Amazonia. Through this project, in Tumichucua (Riberalta, department of Beni), a centre was created to prepare bilingual teachers and to give courses on vocational education. The Guarani people began this program with the aim of preparing bilingual material for the first three years of school, and the curriculum incorporates, at minimum, their history and culture. This project is operated in co-ordination with the Guarani People’s Assembly, the Minister of Education and Culture, UNICEF and an NGO. The Atlantic Coast of Nicaragua enjoys a special status of autonomy, which was established by the Constitution of 1987. ‘A Spanish-Miskito and Spanish-Sumu bilingual education programme has been initiated as a practical means for developing the rights to culture and language of the communities of the Atlantic Coast region of Nicaragua. Among the programmes implemented as measures to combat racial discrimination are the programmes in the Miskito, English and Sumu languages given by the Bluefields Indian and Caribbean University.’23 This programme, in the autonomous zone, has been operating wit its own study materials for several years. 21

CERD/C/281/Add.1, p. 27. CERD/C/281/Add.1, p. 27. 23 CERD/C/277/Add.1, p. 18. 22

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THE QUESTION OF INDIGENOUS AUTONOMY IN LATIN AMERICA The Peruvian Constitution points out that ‘the eradication of illiteracy and the promotion of bilingual education together with intercultural education is a concern of the State, which has to ensure that cultural and linguistic differences are preserved’ (CERD/C/225/Add.3, p. 25.). For many years a programme of intercultural bilingual education had been developed in the city of Puno, which was one of the most developed programs in the region. As the governmental report shows, many of these programs were cancelled due to the violence that lashed the Peruvian high plateau and mountain range in recent times. In Chile, the Indigenous Law 19.9253 of 5 October 1993, establishes in Article 32 that: ‘in the regions with high indigenous density, an intercultural bilingual education system will be created with the aim to prepare the indigenous to manage themselves adequately, not only within their own community but also in a global society’. Teachers of intercultural bilingual education have been trained from 1992 onwards, both for the Mapuche and Aymara indigenous communities. Experiments with intercultural bilingual education have been conducted in both rural and urban schools and various universities have begun to develop postgraduate studies and specialisation for teachers in these subjects. Venezuela has an intercultural bilingual education program (REB), which started in 1984, and has concentrated on the training of teachers. In 1995 ‘the first group of bilingual professors graduated in the city of Maracay, which is composed of 18 representatives of Kariña, Guajibo and Piaroa ethnic communities’.24 The Argentinean National Indigenous Institute (INAI) currently develops various intercultural bilingual programs, especially in Chaco, in the northern part of the country, where the ethnic ‘Wichi’ group lives.25 Research programs have been developed, such as the ‘elaboration of didactic programs for the literacy in Wichi language’. Mexico has a long history of developing indigenous educational programmes. One could say that the first ideas concerning education of indigenous peoples in Latin America originated from there. The creation of CREFAL in 1941, the Centre for Education and Literacy for the Indigenous Communities, in the city of Patzucaro, placed Mexico at the centre of this debate. Nowadays there are numerous governmental and private intercultural bilingual education programmes. The National Indigenous Institute supports many schools and programs in numerous communities in the country. In Mexico, school texts have been prepared for indigenous children in different indigenous languages. Bilingual and bicultural programmes have been initiated at the primary school level, with the option to provide programs in Spanish only, if communities so desire. To counteract the lack of personnel, programs have been established to train promoters, that is, workers of secondary education. In 1991, some 26 different indigenous groups, totalling 33,000 children between 10 and 14 years old, benefited from the literacy programme, while ten indigenous groups from 24 25

CERD/C/263/Add.8, p. 27. CERD/C/299/Add.11, p .8.

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JOSÉ BENGOA the poorest states in the country, participated in the Programme for Initial Education for Indigenous Children. It is equally important to mention that for the past few years bilateral treaties for bilingual intercultural education have been made between neighbouring countries with populations belonging to the same indigenous groups. This is the case of the Bucaramanga treaty between Colombia and Venezuela, and the Darién treaty between Colombia and Panama. Other experiences in the field of education policies especially those aimed for indigenous peoples might escape our attention, but it is important to point out that currently, in almost all the countries discussed, pilot programmes are being developed, as well as the preparation of bilingual teachers and study materials. 4.3. Measures with Respect to Culture Some countries have promoted tolerance toward different cultures through diverse initiatives. The most common are the scholarship programmes toward discriminated indigenous peoples in order to get access to education. In Brazil it was established that ten per cent of the higher education seats were reserved for young people coming from discriminated groups, whether black or indigenous. There is no other country, to our knowledge, that has a similar practice. This is a case of positive discrimination, which takes into consideration the existence of different cultures. Some laws, such as the Chilean, Peruvian and Bolivian stimulate the creation of broadcasting programs and radio programs in the vernacular language. There are Latin American cities where in the past few years it has been possible to listen to broadcasting programs in indigenous languages. This is a relatively new phenomenon. Some countries have created public and private institutions in order to fight for the eradication of all forms of racial discrimination. An Argentinean Report26 tells about the creation in 1995 of the ‘National Institute to Combat Discrimination, Xenophobia and Racism’, whose functions include ‘disseminating the principles and legal standards relating to nondiscrimination’ as well as informing public opinion about the creation and promotion of educational campaigns and research in these subject-matters.27 A Report of Trinidad and Tobago points out the creation of the Centre of Ethnic Studies at the University of West Indies (St Augustine, Trinidad campus) at the end of 1992. The goal of the Centre is to carry out systematic studies on the issue of racial relations (CERD/C/224/Add.1, p. 3.). It seems that there has been little progress lately in the area of information and cultural communications. However, the reports and studies do not acknowledge the existence of initiatives that use the media for education of tolerance, human and indigenous rights. There are, without doubt, exceptions, as in many places these initiatives are developed for the creation of radio stations, in particular, managed by 26 27

CERD/C/299/Agg.11, p. 13. Ibid., p. 12.

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THE QUESTION OF INDIGENOUS AUTONOMY IN LATIN AMERICA indigenous peoples to broadcast in their own language. Such initiatives are important for the development of indigenous identities and respect for different cultures. The Bolivian Telecommunication Act points out that ‘state-owned media have the important mission to promote the respect of human rights and combat all forms of discrimination’.28 In some countries radio stations broadcast in indigenous languages. It is important to mention, here, Radio Musku on the Atlantic Coast in Nicaragua, which broadcasts in Miskito, and Radio Shuar in Ecuador, which broadcasts in the indigenous language in the whole territory of the Shar federation in the eastern part of Ecuador, toward the Amazonian slope. In Temuco, southern Chile, there are numerous self-managed radio programs, which operate with support of the National Corporation of Indigenous Development, a State organisation, which broadcasts in Mapuche language. In numerous capitals in Latin America, especially in Lima, La Paz, Quito, there are commercial radio programs, which broadcast in vernacular languages. This has resulted in a high rural-urban migration in the last few years, and the revitalisation of these languages in the modern and urban environment. Paraguay is the only country in Latin America that is officially bilingual. Its Constitution establishes that Spanish and Guaraní are the country’s two official languages. The constitutions of the other countries are in some cases silent, while in others they allow indigenous languages to maintain the character of an official language within the community in question. This is the case of the Colombian Constitution, which prescribes that the languages and dialects of the ethnic groups are also official (languages) in their own territories; that of Ecuador, which provides that the Quichua, Shuar and the other ancestral languages are official for the indigenous peoples, in accordance with the law; that of Peru, which stipulates that official languages are Spanish and, in the regions where they are predominant, also Quechua, Aimara and the other aborigines languages, in accordance with the law; or that of Nicaragua, which contains similar arrangements. In some countries, such as Argentina, the Constitution limits itself to assure the right to bilingual education for the indigenous groups within the national territory. 4.4. Measures with Respect to Cultural Recognition ILO Convention No. 169 stipulates in Article 5 that (a) the social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals, and that, (b) the integrity of the values, practices and institutions of these peoples shall be respected. These principles have also been taken into account by recent Constitutions. Thus the Constitution of Bolivia declares that the right of the indigenous peoples to their own identity, values, languages, customs and institutions is recognised in the legal framework. It also recognises the legal personality of indigenous associations 28

CERD/C/281/Add.1, p. 30.

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JOSÉ BENGOA and unions. That of Brazil (which has not ratified ILO Convention No. 169 and No. 107) contains similar arrangements recognising the right of indigenous to their own social organisation, customs, languages and original beliefs. That of Colombia establishes that the members of ethnic groups will have the right to a formation that respects and develops the natural identity. That of Ecuador lays down that the State will recognise and guarantee the collective right of the indigenous peoples to maintain, develop, promote and strengthen their own identity and spiritual, linguistic, social, political and economic traditions. That of Guatemala, in the reform adopted in 1998, contains a detailed numeration of indigenous peoples’ cultural rights recognised by the State, including: the use of costume, the different forms of spirituality, the use of languages and dialects, conservation and development of art, science and technology, as well as access to sacred places by the indigenous peoples. That of Mexico declares that the law will protect and promote the development of its languages, cultures, customs, measures and specific forms of social organisations. That of Nicaragua prescribes that the Communities on the Atlantic Coast have the right to preserve and develop their own cultural identity within the national unity. That of Panama (which has not ratified the ILO Conventions No 169) stipulates that the State recognises and respects the ethnic identity of the national indigenous communities, as a consequence, it will create programs for the development of material, social and spiritual values of each group and will create an institution for the study, conservation, divulgation of the own culture and language of each indigenous group, as well as the promotion of the complete development of the indigenous groups. Finally, the Constitution of Paraguay recognises and guarantees the right of the indigenous people to preserve and develop their own ethnic identity within their own environment. 5. CONCLUSIONS At the conclusion of the last decade, the relationship between indigenous peoples and the Latin American governments was quite complex. Many progresses, both legal and constitutional, as it is shown in this article, have been registered as well as positive arrangements in the field of natural resources, education and culture. Nonetheless, many indigenous leaders and observers fear that these declarations are void of real meaning. In the first part of this article we pointed out, symbolically, that the nineties seen from the indigenous perspective started with the so called ‘indigenous uprising in Ecuador’, which turned the subject matter into first page material. We should say that this period concludes with the massive march of the Chiapas’ indigenous community through the streets and squares of Mexico. In Mexico as well as in all the Latin American countries, indigenous issues have acquired a clear supportive atmosphere from the side of public opinion. It is a movement that calls for sympathy. However, parting from this generalised sympathy, which leads even governments to deal with these issues more prudently, the course of action is not

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THE QUESTION OF INDIGENOUS AUTONOMY IN LATIN AMERICA quite clear, yet.29 These last lines are an attempt to reflect on the necessary processes of institutionalisation, which will probably turn up in the near future in the relations between States and indigenous peoples. 5.1. Autonomy and Indigenous Self-determination Indigenous leaders and movements have hoisted the flag of autonomy as the way to resolve disputes between the societies, the national majorities and the indigenous societies. The goal is to break away from what Pablo Gonzales Casanova called the ‘internal colonialism’, giving to societies the capacity to decide over their own problems and in particular over their future. There is no doubt that there is a need for the legal right to self-determination for each and every one of the peoples, especially with respect to their own traditions, culture, management of their own resources, resolution of internal conflicts, responsibility for education of the young and, in general, all that is exclusively related to the private sphere and that nobody else can take a decision from them. However, it is not easy to establish, in practice, the political implications to selfdetermination, besides the concept of autonomy have often been used in a vague and equivocal form. In the Constitution of Guatemala, which has been analysed in this article, the right to self-determination was exercised through the indigenous municipalities. In those municipalities where the majority of the population is indigenous, which is common in Guatemala, the authorities might have control over several important matters, and as a result special laws could be passed.30 These municipalities have begun to function in the past few years, rather slowly according to some and promisingly according to others, thus providing a method of competent resolution to conflicts and other solutions to old problems. Maintaining municipal autonomy requires receiving resources from the central State, and the capacity to elaborate on development programs suitable for the region, which are compatible with national development plans, all of which is not easy to accomplish. In the case of Colombia, autonomy and self-determination along with the exercise of the free determination, might be exercised at the local level in the indigenous territories (so called Indigenous Territorial Entities). Representation, participation and self-government are to be practiced in the indigenous territories, ancient ‘resguardos’. The power is limited, but there are promising experiences 29

The EZLN was received in Mexico in the National Congress. President Fox committed himself to send the San Andrés Agreements (known also as Cocopa Agreements) to the national Congress, which he complied with immediately. The Congress, however, has not approved these agreements, which has given rise to a difficult impasse to resolve (October, 2001). 30 This model is similar to the Swiss canton system. Each canton has a series of functions, including the one to collect some type of taxes. Each canton has the liberty to determine the way to proceed with respect to the educational and cultural development, and with respect to the use of the natural resources it owns.

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JOSÉ BENGOA especially in Valle del Cauca, where the reserves have been legally constituted and function efficiently. A third model is presented in Panama, particularly in the Kuna ‘comarca’ and in the Atlantic Coast of Nicaragua together with other demarcated territorial spaces that possess special autonomy and self-determination status. The autonomous government of Kuna is perhaps the oldest and most successful. It is a relatively efficient combination between a traditional system of authorities and a modern governmental model. It has a parliament and decisions are taken regarding budgetary issues and the use of the resources, including the land. The Ecuadorian case of the Shuar Federation in the East and the Bolivian case of the Federation of the Guaraní People, are two developments of interest with respect to social organisation, which, without a doubt, are headed toward some form of legal status that will permit the exercise of the right to self-determination within their own territories. In both cases, as it was shown in this article, the indigenous leaders themselves manage the educational programs, programmes of productive development and numerous activities that the State or other organisations carry out in the federative communities. Within the limits of these territories a new type of ‘protected development’ is emerging, which has been shaped by the notion of autonomy and indigenous self-determination. 5.2. Representation and Indigenous Representation Representation at the national level is one of the main problems, if not the most urgent, when discussing political issues between indigenous people and national States. The Latin American political system has in all cases the republican representative character. This means that for the parliament, the executive and other public positions people vote and elect representatives according to individual citizenship, not according to associate membership. . In all the countries, with the exception of Colombia, indigenous representatives are elected to parliament in the same manner as other non-indigenous citizens, thus, they may access the parliament as nationals but not directly as indigenous people. As a consequence, no parliamentary seats are strictly reserved for indigenous representatives. This highlights the problem of how to enact national laws that can express rights already exercised at the local, municipal, territorial and ‘comarcal’ level. It seems that there are no solutions to this contradiction, that the constitutions recognise multiethnic rights, which are however, concretised at the local level exclusively. This makes representation at national levels difficult, where the majority continues to dominate. This theoretical political difficulty has had very complex consequences in many countries. In Ecuador the indigenous movement led by CONAIE has turned into some kind of national political actor. At the 2001 CONAIE conference all national matters were considered, not just indigenous issues, thus, the CONAIE participated equally as a political party. In Mexico, as was mentioned above, the Zapatista ‘came down’ from Chiapas marching triumphantly through the country. This action of 374

THE QUESTION OF INDIGENOUS AUTONOMY IN LATIN AMERICA symbolic and profound political character, was highly emotional, however, it runs the risk of lacking continuity due to the difficulties of building an adequate system of representation. This is what can happen, in one way or another, in all the countries where indigenous peoples do not have rightful representation, where there are no representative institutions among them, and finally where they don't have the tools to transform the political structures of society. This is why we maintain that the question of autonomy in Latin America is a pending issue, both theoretically and practically. There is no doubt about the necessity to establish new arrangements in the relations between the Latin American States, the Creole societies, and the indigenous minorities and majorities. The region and each of the countries face a process of internal de-colonisation. In this context, the search for autonomous forms appears to be an appropriate mechanism for the protection and realisation of individual and collective rights of the indigenous peoples living on this continent. BIBLIOGRAPHY ASSIES, W.J. Y A.J. FIOEKEMA, Indigenous peoples experiences with self government, Iwgia Document, N’ 76. Publicado por IWGIA y University of Amsterdam, Copenhague, 1994. BENGOA, José La emergencia indígena en América Latina. Fondo de Cultura Económica. Santiago. 2000. BONFIL BATALLA, GUILLERMO, México Profundo, Comité Editor, México, 1985. - Utopía y Revolución, (Editor), Editorial Nueva Imagen, México, 1981. BURGER, JULIAN, First Peoples, a future for the indigenous world, The Gaia Atlas, Anchor Books, New York, 1990. CELADE, La población Indígena de América Latina, Santiago de Chile, 1998. CLETUS GREGOR BARIE Pueblos indígenas y derechos constitucionales en América Latina. Instituto Indigenista Interamericano. México.2000 COTT, DONNA LEE VAN, Indigenous Peoples and democracy ín Latin America, St. Martin Press, New York, 1995. CHIHUAYLAF, ELICURA, Carta confidencial a los chilenos, Ediciones Lom, Santiago de Chile, 1999. CHIRIBOGA, MANUEL, La cuestión indígena en el Ecuador, Cuadernos de Nueva, Quito, 1983. DIAZ POLANCO, HECTOR. Autonomía indígena en América Latina. México. 2002. Documentos de Naciones Unidas, United Natíons meeting of experts to review the experience of countries in the operation of schemes of internal self goverment for indigenous populations, Nuuk, Greenland 24-28 de septiembre, 1991. (HR/NUUK/ 1991 / Sem). Documentos Indios, Declaraciones y pronunciamientos, Tomo 11, José Juncosa, Compilador, Colección 500 años, Editorial Abya Yala, Quito, Ecuador, 1992. 375

JOSÉ BENGOA MINORITY RIGHTS GROUP, Minoritíes in the World, London, 1997. MONTEMAYOR, CARLOS, Guerra en el paraíso, Seix Barral, México, 1991. , Chiapas, la rebelión indígena de México, Joaquín Mortiz Editor, México, 1998. MORALES GUERRERO ASCANIO, ‘The autonorny of the Kuna Yala territory in the Republic of Panamá’ en Leo van der Vlist, (Editor), Voices of the Earth. Indigenous Peoples, new partners and the rigth of self- determination in practice, The Neederlands, 1994.

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PART IV NATIONAL AND COMPARATIVE CASE STUDIES

AUTONOMY, MINORITIES AND SELFDETERMINATION THE PROTECTION OF THE RIGHTS OF MINORITIES BY MEANS OF AUTONOMY: THE CASES OF THE ÅLAND AND KOSOVO1 Markku Suksi 1. INTRODUCTION It starts to be commonplace to conclude that most unrest in the world of today is caused by conflicts not between two States but between parties inside States. The typical situation is the one in which a central government and a minority population are engaged in a process of defending their positions. The minority population often claims that it is subjected to oppression, while the central government, in turn, puts forward arguments of national interest and national security. Under international law, a minority is entitled to all general human rights and, in addition to them, to some special minority rights as indicated, for instance, in Article 27 of the International Covenant on Civil and Political Rights. Against this background, the rights of two particular population groups that could be understood as minorities and their rights constitute the focal point of this article. A denial of minority rights is as 1

This article relies heavily on previously published works, such as Markku Suksi (ed.), Autonomy – Applications and Implications (Kluwer Law, Dordrecht, 1998), Markku Suksi: Frames of Autonomy and the Åland Islands. (Meddelanden från EkonomiskStatsvetenskapliga fakulteten vid Åbo Akademi, Ser. A:433. Åbo: Åbo Akademi, 1995), Markku Suksi, ‘The Åland Islands in Finland’, in Local Self-Government, Territorial Integrity and Protection of Minorities. pp. 193–220. International Colloquium, Lausanne, 25–27 April 1996. (Schulthess Polygraphischer Verlag, Zürich, 1996), Markku Suksi, ‘On Mechanisms of Decision-Making in the Creation (and Re-Creation) of States – with Special Reference to the Relationship between the Right of Self-Determination, the Sovereignty of the People and the pouvoir constituant’, in Tidsskrift for Rettsvitenskap 3/97 pp. 426–459, and Markku Suksi, ‘Constitutional Options for Self-Determination: What Works?’ Paper presented at a policy conference on “Options for Kosovo’s Final Status – Quo vadis, UNMIK?” (Rome 12–14 December 1999), organised by the United Nations Association of the United States of America and the Istituto Affari Internazionali. Published in electronic form at <www.unausa.org/issues/kosovo/rome/suksi.asp.> Hence for more extensive referencing, please see these works. This article is a sister article to Markku Suksi, ‘Autonomy by International Decision: the Cases of the Åland Islands and Kosovo’, in Harry Jansson, Johannes Salminen (eds.), The Second Åland Islands Question – autonomy or independence. Mariehamn (Julius Sundbloms Minnesstiftelse, 2002) pp. 75–96, which compares the institutional autonomy arrangements of the Åland Islands and Kosovo with each other.

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MARKKU SUKSI such against international law, but if a minority is severely oppressed, it may have a valid claim of self-determination. However, under international law, a State, too, is entitled to certain things, such as respect for its territorial integrity and national sovereignty. The issue is therefore how these two positions can be reconciled: how can both the minority and the State get most or at least part of what they want in the form of rights without a total defeat of their original position? In a number of instances, the international community has answered the question by recommending or instituting some kind of territorial autonomy for the region in question and guaranteeing certain rights to the inhabitants of the area. Through such an arrangement, the State retains its overall sovereignty and self-determination, while the minority is granted a strengthened protection of its rights and, as it could be argued in at least a few cases, a share in the internal self-determination of the State. The Åland Islands and Kosovo are examples of such arrangements. However, it is not necessarily only territorial autonomy that can be called upon in situations of this kind. Different forms of non-territorial or cultural autonomy may also offer relevant options, as is indicated by the Kosovo example. In addition, it is possible to reach solutions in which the minorities are granted certain extended rights without a connection to territorial or non-territorial autonomy arrangements. Very few things unite and are common to the Åland Islands and to Kosovo. One region is called the islands of peace, while the other has been and still is plagued by violence. One region is regarded to have a reasonable fulfilment of human rights and especially minority rights, while the other is characterised by the desire of the various population groups to extinguish each other.2 There is, however, a formal element that is common to the Åland Islands and Kosovo, namely the existence of a decision by an authoritative international body concerning the administration and national affiliation of the region with a view to promote international peace and security and the rights of the individuals in those areas. In particular, both regions are interesting because of the attempt to guarantee the rights of the inhabitants by granting these regions an autonomous status. Within this autonomy framework, the rights of the individuals are supposed to be secured. What are the rights, in this respect, that these international resolutions envision for the inhabitants of the Åland Islands and Kosovo, respectively? Between 1917 and 1921 the population of the Åland Islands wished to secede from Finland and to unite with Sweden. This wish was expressed, for instance, in two different petitions addressed to the Swedish state bodies, signed by an overwhelming majority of the population of the Åland Islands. However, after a British initiative to deal with the issue, the Council of the League of Nations formulated and approved unanimously a Resolution on 24 June 1921 that under certain conditions, Finland should continue to have sovereignty over the Åland 2

This article will not discuss the issue of whether the inhabitants of the Åland Islands (approximately 25,000 persons) constitute a formal minority of its own or if the inhabitants constitute a special part of the Swedish-speaking minority (approximately 300,000 persons) in Finland.

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THE PROTECTION OF THE RIGHTS OF MINORITIES BY MEANS OF AUTONOMY Islands. The conditions set by the Council of the League of Nations which were agreed to by both Finland and Sweden in the Settlement of 27 June 1921 (appended to the earlier Resolution) include a guarantee of the self-government for the Åland Islands and the explicit grant of certain special rights to the population of the Åland Islands which was to be inserted in the Finnish ‘autonomy law’ for the Åland Islands. The Resolution also contained the condition for the demilitarization of the Åland Islands by stating that a certain agreement was to be concluded to this effect. However, the Settlement did not become a formal treaty under international law, although it has, since then, been held to assume a binding character under the principles of customary international law.3 U.N. Security Council Resolution 1244 (1999) deals with the situation in Kosovo and refers to the need to develop self-government and/or substantial autonomy in that region, obviously in order to prevent a secession from the Federal Republic of Yugoslavia and, potentially, a unification with Albania. In addition, the resolution states that the main responsibilities of the international civil presence will include protecting and promoting human rights. Although the resolution refers to the people of Kosovo in paragraph 10, it does not at all refer to any self-determination that could be exercised by any population in the territory of Kosovo, but departs from the understanding that the Federation of Yugoslavia is in the possession of its sovereignty and self-determination, as restricted by the action of the international community in the Resolution. Under Article 25 of the Charter of the United Nations, the decision of the Security Council is legally binding upon the member states and upon the international community, and the member states are under a legal obligation to obey such a resolution. In addition, Chapter VII of the United Nations Charter establishes the power of the Security Council to take action with respect to threats to the peace, breaches of the peace, and acts of aggression and gives the Security Council an array of economic, political and military means to address the situation, e.g., in an individual country. Such a country is under an obligation to comply with the decisions of the Security Council. Paragraph 2 of the Security Council Resolution on Kosovo nevertheless makes reference to the acceptance by the Federal Republic of Yugoslavia of the principles and other required elements, such as the texts of two annexes to the Resolution, referred to in Paragraph 1 of the Resolution. Hence there is also an element of voluntary compliance on the part of Yugoslavia present in the Resolution. The two decisions by the two international bodies constitute the focal point of this article. The issue is, therefore, the following: What kind of parallels can be drawn between the Åland Islands and Kosovo with regard to the contents of the decisions made in the Council of the League of Nations and the U.N. Security Council? What are the similarities and differences in the more substantive sphere, that is, what are the rights that the two resolutions envision for the inhabitants of the two areas? 3

Hannikainen (1993) passim; Rosas (1997) passim; Hannikainen (1997) passim.

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MARKKU SUKSI The focus of this article is on the contents of the two international decisions identified above. The decisions have been adopted by two different organs, and one of the organs, the Council of the League of Nations, vanished in the wake of the Second World War and was replaced by the Security Council of the United Nations.4 The two organs can, nevertheless, be understood as being of the same ‘rank’ and having a similar peace-promoting function. The difference in time between the two organs and the development of international law in the fields of human rights and self-determination undoubtedly makes it somewhat difficult to compare the Åland Islands decision with the Kosovo decision. The practical implementation of the two decisions is, in this context, of somewhat secondary importance. The purpose of this article is therefore to explore, against the background of the two decisions, the interface between the concept of human rights at the level of international law and the solutions for their realisation that are available at the level of national constitutional law in the form of the rights of the individuals concerned. This article does not deal with the general position of the Åland Islands under international law. Although that topic is interesting, it has been covered already in a multitude of publications, and very little new perspectives can be drawn from the issue.5 2. SOME BACKGROUND ISSUES The nature of the conflict was quite different in respect of the Åland Islands in comparison with Kosovo. As concerns the level of oppression that could spark demands of secession, even legitimate demands, the oppression of the inhabitants of Kosovo by the Serbs reached such levels that they could be regarded as grave breaches of human rights and humanitarian law, and even as genocide. The Åland Islanders seem to have been motivated to secede by other circumstances, that is, anticipation of such migration from mainland Finland that could de-stabilise the linguistic composition of the Islands and also in anticipation of Finnish nationalism. These circumstances was also present without there being any concrete evidence of violations of the rights of individuals or of the whole population. At that juncture, the level of militarization of the conflict was, in fact, surprisingly low with respect to the Åland Islands, especially taking into consideration the fact that Finland had just experienced a Civil War and had also unofficially supported military adventures across the Eastern border. However, in the 1920s, it was still too early to speak about human rights at the level of international law. What existed was a prohibition of slavery and some other rather limited provisions, that were included by minority regimes in formal treaties 4 However, the United Nations or any of its bodies did not assume the task of overseeing the implementation of the Åland Islands settlement. See Hannikainen (1993) pp. 41–48. See also Modeen (1973) pp. 61–76. 5 See, e.g., Rosas (1997) passim; Hannikainen (1997) passim; Horn (1997) passim; Fagerlund (1997) passim; Spilopoulou Åkermark (1997) passim.

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THE PROTECTION OF THE RIGHTS OF MINORITIES BY MEANS OF AUTONOMY between certain countries. In addition, the peace after the First World War had introduced the concept of the self-determination of peoples, but the application of this concept was limited in the Versailles Peace Treaty to those areas that belonged to the parties to the Treaty. As an element of the international legal discourse the concept of the self-determination can be located in limited form in the Versailles Peace Treaty, at which point it mainly concerned border adjustments between States by means of the referendum or other forms of popular consultation. Here the point was that a minority in one State could, in some instances, choose the sovereignty under which to live. In most cases, the other State was one where the majority population was of the same ‘ethnicity’ as the minority population in the area in which the referendum was organised. In that respect, the principle of selfdetermination was one that was applied mainly in relation to the losers of the war. In the Åland Islands context, where neither Finland nor Sweden had been directly involved in the First World War and did not constitute parties to the Peace Treaty of Versailles, the combination of minority rights and self-determination nevertheless produced a setting that was conducive to an autonomy solution. After the First World War, the League of Nations supported the conclusion of a number of treaties for the protection of different minority groups. The aim of the treaties was to make it possible for a minority in a State to run its own educational and social matters on the basis of a formal treaty under international law between the State of the minority and a neighbouring State, a so-called kin-State. The intention of the arrangements was to promote equality in fact, not only in law.6 The development of a comprehensive set of international human rights started only with the Second World War and after the approval of the Charter of the United Nations, which, in addition to granting binding powers of decision-making to the Security Council, makes reference to the self-determination of peoples and to human rights. The broader notion of self-determination that emerged after the Second World War seems to have developed into a concept that is able to establish a bridge between constitution-making at the level of national constitutional law and the protection of certain rights accorded at the level of international law. On the latter level, self-determination has been formulated as a legal right that contains such concepts as the free determination of the will of the people and the people’s right to political participation. The principle of self-determination focuses not only on the immediate national setting, but complicates the picture by adding to the scene a number of options provided for under public international law and especially under human rights law. However, self-determination is rarely a term found under national constitutional law. Substantive human rights were declared at a global level in 1948 in the Universal Declaration of Human Rights and made binding through the two Covenants of 1966, one dealing with civil and political rights and the other with 6

See also Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. 12, Permanent Court of International Justice, 1928, and Minority Schools in Albania, Advisory Opinion of the Permanent Court of International Justice, 6 April 1935, as illustrations of the League of Nations minority regime.

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MARKKU SUKSI economic, social and cultural rights.7 In the 1966 Covenant on Civil and Political Rights, Article 27 says that ‘in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language’. Article 27 reminds States of the fact that in reading Common Article 1 on self-determination, it should be taken into account that States are not homogeneous, but consist of different groups of people, which may have diverging aspirations and traditions. Article 27 could also, in relation to the principle of non-discrimination, be used to create space for special protection of minorities or for so-called positive discrimination. The provision does not say that minorities have the right to autonomy; the bottom line is rather that the State shall not deny minorities certain common activities that are peculiar to the minority in question. However, because the provision expresses a collective character through the sentence ‘in community with the other members of their group’, autonomy is clearly one option that is permissible under Article 27. Hence under international law, positive discrimination of a minority is lawful and minorities could, in certain situations, even have a collective right to preserve their identity, especially in cases in which that identity is seriously threatened. This threat was imminent in the Kosovo case, but not in the Åland Islands case. As an indication of this, certain rights of persons belonging to minorities were introduced in 1992 in the U.N. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (G.A. Res. 47/135(1992)). Article 2(1) lists the rights of persons belonging to minorities to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form or discrimination. Article 2(2) of the Declaration emphasises the right of the persons belonging to minorities to participate effectively in cultural, religious, social, economic and public life. In addition, Article 2(3) stipulates that persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation. 7 Common Article 1 of these Covenants establishes the right of self-determination of a people as a legal norm, but the current interpretation of self-determination outside the colonial context is that self-determination is exercised by the population of an established State. However, this interpretation does not as such take into consideration the fact that States are not homogeneous in terms of the composition of the population. Furthermore, according to that Article, all peoples, not only those under colonial domination, have the right of selfdetermination, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development. The two Covenants clearly state the existence of the concept of self-determination as a right under public international law. It is also a permanent and continuous right for peoples and it can be activated also after it has been exercised for the first time. It seems as if it were considered a collective right that can be viewed as a precondition for the realisation of most other human rights.

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THE PROTECTION OF THE RIGHTS OF MINORITIES BY MEANS OF AUTONOMY Autonomy is specifically mentioned as an organisational option in the OSCE principles adopted at the Human Dimension Meeting in Copenhagen in 1990. Here, autonomy and minority protection are connected in Paragraph 35(2), according to which the ‘participating States note the efforts undertaken to protect and create conditions for the promotion of the ethnic, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned’.

When a minority is distinguished from the rest of the population not only by the minority’s own action under Article 27 of the CCPR but also by actions of the State in ways that may amount to discrimination, then it should be possible to offer the protection of human rights and self-determination to such a group of persons, especially if the treatment of that group of persons is oppressive. The issue is then: under what forms should such protection be offered? The cases of the Åland Islands and Kosovo point at one solution: autonomy and special rights. It is in this context of modern human rights that the case of Kosovo appears. The ethnically Albanian majority of the inhabitants of Kosovo were denied a number of substantive rights, representative government and effective participation through the actions that started in 1989. At the moment, the international community is in the process of designing legal mechanisms through which Kosovo could reemerge as a part of the Federal Republic of Yugoslavia. However, this should take place in a manner that respects the rights of the persons living in the area of Kosovo. According to U.N. Security Council Resolution 1244 (1999) of 10 June 1999, the aim of the international community is to promote ‘the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo’, taking full account of annex 2 in the Resolution and of the Rambouillet Accords (S/1999/648). The international presence in Kosovo has as its aim to protect and promote human rights in Kosovo. Annex 2, in turn, starts ‘[a] political process towards the establishment of an interim political framework agreement providing for substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region, and the demilitarization of UCK. Negotiations between the parties for a settlement should not delay or disrupt the establishment of democratic self-governing institutions’.

Hence the discussion concerns both institutional and substantive solutions within the Yugoslav constitutional setting to restore the rights, the representative government and effective participation for the inhabitants of Kosovo.

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MARKKU SUKSI Even with this variation in the background issues related to the two cases, two international bodies have passed decisions on how the rights of the inhabitants of the two areas should be secured and organised. These two bodies had before them the task of reconciling demands of self-determination with those of sovereignty and territorial integrity of the State concerned. Against this background, solutions were created which involve the grant of extensive self-government to the disputed areas and the grant of certain rights to the inhabitants of these areas. The underlying idea seems to be that such international or external involvement may be able to produce a more lasting solution. According to existing research, however, the internal conditions for autonomy nevertheless seem more important than the external.8 Hence an emphasis on constitutional and political solutions at the national level continues to be important. The case of the Åland Islands offers many valuable pieces of information about institutional design and how substantive rights are linked to institutions. In fact, the entire Åland Islands Settlement of 1921 departs from the point that certain institutional and substantive guarantees must be establish in the 1920 Autonomy Act by Finland. The so-called Guaranty Act was enacted in 1922 as an addition to the 1920 Autonomy Act. It was only after 1922 that the population of the Åland Islands became willing to act within the framework of self-government created as early as in 1920. The current legal framework in force at the Åland Islands is the 1991 Autonomy Act. This Act continues to embody the principles of the 1921 settlement. The processes aiming at internal solutions for Kosovo started before S.C.Res. 1244(1999). One of the concerns is that the rather general S.C.Res. 1244(1999), which is intended to be of a temporary character pending final settlement, will become a much more permanent foundation for the governance of Kosovo than originally planned, extending its validity, for instance, over the first decades of the 21st century. However, the resolution makes a number of references to the Rambouillet Accords and demands that full account be taken of these Accords.9 The Rambouillet Accords comprise the text of a settlement of the Kosovo issue entitled the Interim Agreement for Peace and Self-Government in Kosovo. This agreement was made between the so-called Contact Group, the Federal Republic of Yugoslavia, and the representatives of the inhabitants of Kosovo. Although the Kosovo representatives accepted this agreement the Federal Republic of Yugoslavia did not manage to approval all of its elements. Therefore, the Accords did not, in the beginning of 1999, emerge as an official settlement of the Kosovo crisis. In spite of that, the Federal Republic of Yugoslavia is referred to in Paragraph 1 of the Security Council Resolution as having accepted a number of principles and elements in June 1999, including the Rambouillet Accords and, as a part of that, the Constitution of Kosovo.10 Hence as for the Åland Islands in the form of the 1920 Autonomy Act, so 8

Nordquist (1998) p. 73. Published as the U.N. Document S/1999/648. 10 It is important to separate between the Constitution of Kosovo as one part of the Rambouillet Accords and on the one hand the Constitutional Framework for Provisional SelfGovernment in Kosovo (UNMIK/REG/2001/9 of 15 May 2001). The former has not really 9

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THE PROTECTION OF THE RIGHTS OF MINORITIES BY MEANS OF AUTONOMY also for Kosovo there exists a constitutional framework the implementation of which is more or less controversial. This constitutional framework has been made a part of the Security Council Resolution by way of reference to the Rambouillet Accords or the Interim Agreement. To be sure, the Åland Islands Settlement of 1921 was much more specific than the limited text of Security Council Resolution 1244(1999) in terms of the rights to be granted to the inhabitants of the area. However, both contain a number of cornerstones for final implementation, which at least in the case of the Åland Islands is full of examples for further development and refinement. In the Kosovo case, the institutional and substantive parameters included in the Security Council Resolution contain such issues as substantial self-government and/or autonomy, the protection and promotion of human rights, and de-militarization. 3. THE RIGHTS GRANTED 3.1. The Åland Islands Both in the Åland Islands case and in the Kosovo case, the guarantee of certain substantive rights to the individuals concerned has been a principal issue. The participatory rights of the inhabitants are central to this, pointing in the direction of a number of procedural guarantees of autonomy, such as the creation of exclusive law-making powers for the areas concerned.11 The right to vote and the right to stand for election are particularly important because they help in forming the outcome of decisions so that they conform to the wishes of the populations in question. These two rights give ‘flesh on the bones’ of autonomy and make it possible to realise the contents of self-government. In addition, the autonomy arrangements dealt with here provide the individuals concerned with a number of other rights, which constitute the focus of this article. In the Åland Islands case, the arrangement should, according to the Resolution of 1921, aim at ‘the maintenance of the landed property in the hands of the Islanders, at the restriction within reasonable limits of the exercise of the franchise by newcomers, and at ensuring the appointment of a Governor who will possess the confidence of the population’. To that end, certain guarantees specified in the Settlement between Finland and Sweden before the Council of the League of Nations were outlined that had the purpose of guaranteeing not only the autonomy but also the Swedish character of the Åland Islands. These guarantees should help preserving the language, the culture, and the local Swedish traditions of the population of the Åland Islands. The electoral rights and the method of selecting the entered into force, but should serve as the source of inspiration for the latter, which has been enacted by the Special Representative to Kosovo of the Secretary General of the United Nations. 11 For a discussion of the translation of the right to (internal) self-determination into an autonomy arrangement that caters for the right to participate in the Åland Islands and Kosovo, see Suksi (2002) passim.

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MARKKU SUKSI Governor of State as well as the taxation issue and the ‘regional citizenship’ or the right of domicile have been dealt with above. The Settlement of 1921 also contains provisions concerning language of instruction and the possession of real property. The rights dealt with above are, of course, not the only ones that apply to the inhabitants of the Åland Islands. There are special rights that exist inside the competencies of the Åland Islands in addition to or as exceptions to the rights that the Constitution of Finland guarantees to everyone. In addition to regular constitutional rights, the inhabitants of the Åland Islands also enjoy international human rights, at least to the extent to which the Legislative Assembly has consented to such an international commitment, which Finland has taken on herself. The language of instruction is dealt with in Paragraph 2 of the Settlement. According to that provision, the Government of the Åland Islands or the municipalities on the Åland Islands shall in no case be obliged to support or to subsidise any other schools than those in which the language of instruction is Swedish. Moreover, in the scholastic establishments of the State, instruction shall also be given in the Swedish language. Hence Swedish is identified as the exclusive language of instruction, leaving no room for the Finnish language. In addition, it provides in the same Paragraph that without the consent of the municipality in question the Finnish language may not even be taught in the primary schools supported or subsidised by the State or a municipality. Hence under the Settlement, the only possibility for establishing a primary school where Finnish is the language of instruction or – provided that there is no consent from the municipality in question – in which Finnish is taught is to start a private school, which is completely privately funded. The matter is presently regulated in Section 40 of the 1991 Autonomy Act, according to which the language of instruction in schools maintained by public funds or subsidised from said funds shall be Swedish, unless otherwise provided by an Ålandic Act. This leaves the issue of the language of instruction and, in fact, the issue of private schools to be regulated by the Legislative Assembly (under Section 18, Paragraph 14, of the Autonomy Act, law-making competence in the field of education is placed in the hands of the Legislative Assembly of the Åland Islands). Article 17 of the Ålandic Act on Basic Schools (18/1995) currently forms the legal basis of the linguistic denomination of schools in the Åland Islands. According to the provision, the language of instruction in the basic school system is Swedish. It is, under the provision, of course possible to use another language when teaching that other language. Some exceptions to the general rule of Swedish as the language of instruction are possible, for instance, to ensure effective supporting instruction to a pupil by using the mother tongue of that pupil. However, through this regulation of the language of instruction, nothing much has been said about the preservation of the Swedish language, the culture and the local Swedish traditions of the Åland Islands. It is clear that the language of instruction is important, and its importance is enhanced through its exclusive position on the Åland Islands, but this measure alone would probably not be enough to preserve the language and culture. Here the 1920 Autonomy Act comes into play with its indication that because cultural and linguistic matters and areas that are 388

THE PROTECTION OF THE RIGHTS OF MINORITIES BY MEANS OF AUTONOMY relevant to them, such as traditions, are not enumerated among the legislative topics of the Parliament of Finland, they automatically belong to the legislative competence of the Åland Islands. The 1920 Autonomy Act does not fix any official language of the Åland Islands, but it may be presumed that it should be Swedish, especially as Section 29 of the 1920 Act establishes Swedish as the administrative language of State agencies and as Section 30 of the 1920 Act designates Swedish as the language of correspondence for contacts between the Ålandic authorities and the authorities of the State (be it in the Åland Islands or in the central government of the State). Through guaranteeing also the original autonomy arrangement of 1920, the Settlement therefore emerges as a comprehensive framework for the maintenance of all aspects of culture and customs on the Åland Islands. The current Autonomy Act of 1991 designates in Section 36 Swedish as the official language of Åland. It is also provided that the language used by the State and Ålandic authorities and in the municipal administration shall be Swedish. Additionally, Swedish shall be the language used in the Evangelic Lutheran Church, unless otherwise stipulated in the Church Act. The language of correspondence shall, according to Section 38, continue to be Swedish. In addition, on the basis of Section 18, Paragraph 14, of the current Autonomy Act, education, culture, sport, youth work, the archive function, and the library and museum service shall as a general rule belong to the competence of the Legislative Assembly of the Åland Islands. Therefore the entire framework established in the 1991 Autonomy Act continues to embody the principles adopted at the beginning of the 1920s so as to ensure the best possible conditions for the preservation of language, culture and local Swedish traditions on the Åland Islands in an exclusive manner in relation to the Finnish language. Nevertheless, under Section 37 of the 1991 Autonomy Act (as already under Section 29 of the 1920 Autonomy Act), a citizen of Finland shall have the right, in a matter concerning himself, to use the Finnish language on the Åland Islands before a court of law and other State authorities on the Åland Islands.12 Interestingly enough, the parties to the 1921 Settlement felt that the possession of real property could play a role in the preservation of language, culture and traditions on the Åland Islands. There perhaps existed a fear that the Finnishspeaking population of the mainland would purchase lands on the Åland Islands. Hence, a limitation on the purchase of real property was perhaps one way of keeping the Åland Islands less attractive for permanent settlement by large numbers of Finnish-speakers. Therefore, Paragraph 3 of the 1921 Settlement aims at creating a preference system by which those legally domiciled in the Åland Islands, the Council of the Åland Islands and the municipality in which a piece of real property is situated that has been sold to a person who is not legally domiciled in the Åland Islands, would have the right to buy the estate at a price which, failing agreement with the buyer, shall be fixed by the Court of First Instance with regard to current prices. Although the principle of the freedom of contract would prevail and the 12 The notion of State refers in this context to the organs of the government of Finland present in the Åland Islands, not to the organs of regional self-government or municipal selfgovernment in the Åland Islands.

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MARKKU SUKSI possibility would exist that a non-Islander could purchase real property, the Åland Islanders or their own institutions would have the possibility to control the transfer of real property. Currently, Section 10 of the 1991 Autonomy Act defines the right to acquire real property at the Åland Islands by way of reference to another Act enacted in the same way by the Parliament of Finland as the Autonomy Act: ‘Provisions concerning limitations on the right to acquire real property or property of a similar nature in Åland with right of ownership or usufruct are stipulated in the Act on the Acquisition of Real Property in Åland (3/1975). The limitations shall not apply to a person with the right of domicile.’ A special Act on the Acquisition of Real Property in Åland was enacted by the Finnish Parliament for the first time in 1938 (Act No. 140/38), that is, more than 15 years after the Settlement of 1921. An important change that took place with the new Act in 1975 was that under the previous Act, anybody could buy real estate on the Åland Islands, but faced, in the absence of the right of domicile, the risk of the property being redeemed by the above-mentioned categories of persons or institutions. However, under the 1975 Act, an advance permit by the Government of the Åland Islands is required of persons who are not in possession of the right of domicile before they can purchase property. This permit regime is, naturally, a clearer restriction of the freedom of contracts and right to property than the earlier system. In addition, the autonomy arrangement confirmed before the League of Nations in 1921 included a system previously established in 1920 by which the inhabitants of the Åland Islands, that is, those persons who were registered as residents of the Ålandic municipalities under a Finnish Act that covered the whole of Finland, were exempted from military service. Neither the 1856 Convention of Paris between France, Great Britain, and Russia nor the 1921 Convention Relating to the NonFortification and Neutralisation of the Åland Islands presuppose such exemption. However, it could be said that a general conscription of all Finns, or Finnish males, as the matter is defined, including those from the Åland Islands, would have created a permanent cadre of reservists on the Åland Islands. Therefore, the root cause for this exemption from military service may be due to early wishes to pacify the then strategically important Åland Islands. Another possible, albeit speculative, reason for the exemption could be the wish not to give military training to inhabitants of an area that had secessionist intentions. This matter is currently regulated in Section 12 of the 1991 Autonomy Act. All the special rights that the inhabitants of the Åland Islands enjoy do not flow directly (right to vote, language of instruction, property) or indirectly (organs of selfgovernment, exemption from military service) from the 1921 Settlement. Some rights have been formulated and granted afterwards by the Finnish Parliament, such as the right of trade, which was formulated for the first time in 1951 and is currently included in Section 11 of the 1991 Autonomy Act: ‘The right of a person without the right of domicile to exercise a trade or profession in Åland for personal gain may be limited by an Ålandic Act.

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THE PROTECTION OF THE RIGHTS OF MINORITIES BY MEANS OF AUTONOMY However, such an Ålandic Act may not be used to limit the right of trade of a person residing in Åland, if no person other than a spouse and minor children is employed in the trade and the trade is not practices in business premises, an office or any other special place of business.’

The right of domicile, too, was formulated for the first time as late as in 1951. Apparently, there existed a need to specify in a uniform manner the grounds for certain material rights, the right to vote and to acquire property, the right of trade, and the exemption from military service. The definition of the right of domicile created at this point a clearer distinction between the inhabitants of the Åland Islands and those of mainland Finland and emerged as a more protective shield in relation to the former than under the previous legislation. This definition of the right of domicile may have had a more discouraging effect on persons from the mainland – both Finnish and Swedish speakers – concerning their intention to move to the Åland Islands.13 The 1991 Autonomy Act spells out the details of this exclusive characteristic in respect of citizenship: only citizens of Finland may have the right of domicile in Åland. The arrangement amounts to a special regional citizenship, which is possessed, by virtue of Section 6 of the Autonomy Act, by a person who at the time of the entry into force of this Act had the right of domicile according to the 1951 Autonomy Act and by a child who is under 18 year of age, is a citizen of Finland and is resident in the Åland Islands, provided that the father or the mother of the child has the right of domicile. Hence the right of domicile follows the principle of jus sanguinis. However, according to Section 7 of the Autonomy Act, the right of domicile is, in general, granted upon application to a citizen of Finland who has moved to the Åland Islands and who has, without interruption, been habitually resident in the Åland Islands for at least five years, and who is satisfactorily proficient in the Swedish language. The rules concerning the acquisition of the right of domicile may thus be viewed as exclusive in relation to citizens of other countries and restrictive as concerns the citizens of mainland Finland.14 Under Section 8 of the 13 In a decision by the Supreme Administrative Court of Finland (HFD 1979-A-I-4), the position of the legal order in respect of the right of domicile as laid down in the 1951 Autonomy Act was spelled out. The Court held that the lack of and also the denial of the right of domicile implies the limitation of certain rights which, under the equality provision in the then Article 5 of the Finnish Form of Government (Constitution) Act belong to Finnish citizens. Because the 1951 Autonomy Act did not establish the knowledge of the Swedish language as an explicit precondition for receiving the right of domicile, it was not possible to deny the right of domicile on the grounds spelled out in the decision of the Government of the Åland Islands that the person in question neither understood nor could speak Swedish in a way which could be expected with regard to the length of the person’s residency in the Åland Islands. The Autonomy Act was subsequently complemented with a requirement of satisfactory knowledge of Swedish. 14 See the decisions of the Supreme Administrative Court of Finland (HFD 1996-A-1 and HFD 1995-A-3), which dealt with the compatibility of the requirement of Finnish citizenship as a precondition for the right of domicile with the principle of non-discrimination in the EC

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MARKKU SUKSI Autonomy Act, the forfeiture of Finnish citizenship shall also mean the forfeiture of the right of domicile, while the forfeiture of the right of domicile of a person who moves permanently away from the Åland Islands shall be regulated in an Ålandic Act. This exposé of the rights granted to the inhabitants of the Åland Islands shows that the Settlement of 1921 has resulted in an elaborate construction of mechanisms that protect that group of persons. It can, of course, be asked whether or not lesser forms of institutional and substantive arrangements would have sufficed. 3.2. Kosovo In Kosovo, certain principles of the Rambouillet Accords form the point of departure in respect of the rights granted in the Constitution of Kosovo. This is the case because United Nations Security Council Resolution 1244(1999) very briefly mentions issues concerning the human rights of the inhabitants of the area, although human rights is evidently the point of the whole decision. Section 11(j) is the only section that speaks about the protection and promotion of human rights. However, with the reference to the Rambouillet Accords, the Accords can be utilised to construct a picture concerning the position of the human rights in the arrangement. In addition to the specifics concerning rights that can be obtained from the Resolution and the Rambouillet Accords, including the Constitution of Kosovo, a few references are made to the current legal situation in Kosovo against the background of UNMIK Regulation 2001/9 on a Constitutional Framework for Provisional Self-Government in Kosovo (hereinafter: the Constitutional Framework). The latter should not be confused with the former, although the latter document is an implementation of Resolution 1244(1999). Paragraph 1 of Article 1 in the Principles of the Framework in the Rambouillet Accords says that all citizens in Kosovo shall enjoy, without discrimination, the equal rights and freedoms set forth in the Interim Agreement. Paragraph 3 of the same Article obliges all authorities in Kosovo to fully respect human rights, democracy, and the equality of citizens and national communities. The picture is completed by reference in Paragraph 2 of the same Article to the national communities. They and their members shall have additional rights as specified in the Constitution of Kosovo. The authorities of Kosovo, the Federal Republic of Yugoslavia and the Republic of Serbia shall not interfere with the exercise of these additional rights. The national communities shall be legally equal as specified in the Constitution, and shall not use their additional rights to endanger the rights of other national communities or the rights of citizens, the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, or the functioning of representative

Treaty and the principle of equal treatment of the EEA Treaty in situations where citizens of foreign countries had applied for and been denied the right of domicile. The Court found in both cases that the requirement of Finnish citizenship is not in breach with any of the two treaties.

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THE PROTECTION OF THE RIGHTS OF MINORITIES BY MEANS OF AUTONOMY democratic government in Kosovo. This is also more or less the point of departure of the current Constitutional Framework in Kosovo. The Preamble to the Constitution of Kosovo exclaims the belief in human rights and in the rights of the communities in Kosovo, and Article I(2) of the Constitution stipulates that all authorities in Kosovo shall fully respect human rights, democracy, and the equality of citizens and national communities. This position is enhanced in Article VI of the Constitution, according to which all authorities in Kosovo shall ensure internationally recognized human rights and fundamental freedoms. The strong position of human rights is apparent on the basis of Article VI(2), which makes the rights and freedoms set forth in the European Convention on Human Rights directly applicable in Kosovo. Furthermore, the Assembly of Kosovo is entrusted with the powers to enact into law other internationally recognised human rights instruments. These rights and freedoms, that is, apparently the rights and freedoms of the ECHR and those enacted into law by the Kosovo Assembly, shall have priority over all other law. This rule of precedence may therefore apply also to those laws that may exist within the sphere of the exclusive competencies of the Federation or the Republic. The priority is guaranteed in Article VI(3), according to which all courts, agencies, governmental institutions, and other public institutions of Kosovo or operating in relation to Kosovo shall conform to these human rights and fundamental freedoms. Hence, formally speaking, the system for the protection of human rights envisioned for Kosovo would be among the strongest ones in the world. The legal strength of human rights seems to be true at least in a formal sense on the basis of the current Constitutional Framework. According to Chapter 2 of the Constitutional Framework, the Provisional institutions of self-government and their officials shall, inter alia, exercise their authorities consistent with the provisions of Resolution 1244(1999) of the U.N. Security Council and promote and fully respect the rule of law, human rights and freedoms, democratic principles and reconciliation. Chapter 3 of the Constitutional Framework is devoted to human rights, and Article 3.1. starts off by stating that all persons in Kosovo shall enjoy, without discrimination on any ground and in full equality, human rights and fundamental freedoms. Human rights are brought to the forefront in Articles 3.2. and 3.3. of the Constitutional Framework. Article 3.2. lists eight different instruments of international human rights that the Provisional Institutions of Self-Government shall observe and ensure, while Article 3.3. states that the human rights set forth in these instruments shall be directly applicable in Kosovo as part of the Constitutional Framework.15 The strong position of the human rights in the domestic jurisdiction of 15 The Universal Declaration of Human Rights, The European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, the International Covenant on Civil and Political Rights and the Protocols thereto, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the European Charter for Regional or Minority Languages, and the Council of Europe’s Framework Convention for the Protection of National Minorities.

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MARKKU SUKSI present day Kosovo is enhanced by the provision in Article 14.1. of the Final Provisions, which stipulates that the Constitutional Framework shall prevail in case of a conflict between the Constitutional Framework and any law made by the Assembly of Kosovo. In addition to general human rights in the Rambouillet framework which were brought into the legal system of Kosovo through the Constitution of Kosovo, national communities shall, according to Article VII of the Constitution of Kosovo, have additional rights in order to preserve and express their national, cultural, religious, and linguistic identities in accordance with international standards and the Helsinki Final Act. These additional rights shall be exercised in conformity with human rights and fundamental freedoms. It is also clear on the basis of Article VII(3) of the Constitution that despite these additional rights, the national communities shall be subject to the laws applicable in Kosovo. Hence there is an apparent understanding of the issue of a minority within minority present in the Kosovo setting. However, all acts and decisions concerning national communities must be non-discriminatory. Article VII (4 and 5) makes a distinction between the additional collective rights of the national communities and the additional individual rights of the members of such national communities. The additional collective rights of the national communities include a) the right to preserve and protect their national, cultural, religious and linguistic identities; b) the right to be guaranteed access to, and representation in, public broadcast media, including provisions for separate programming in relevant languages under the direction of those nominated by the respective national community on a fair and equitable basis; and c) the right to finance their activities by collecting contributions the national communities may decide to levy on members of their own communities. Thus the national communities seem to have powers of taxation of some kind. To letter a), a long list of examples is attached which includes, inter alia, local names of towns, villages, streets, and squares and of other topographic names in the relevant language in addition to the signs in Albanian and Serbian, providing for education and establishing educational institutions, protecting national traditions on family law (e.g., inheritance rules, family and matrimonial relations, tutorship, adoption), and operating religious institutions in co-operation with religious authorities. Article I(7) of the Constitution opens a door for at least the Serbs of Kosovo towards Serbia by establishing that there shall be no interference with the right of citizens and national communities in Kosovo to call upon appropriate institutions of the Republic of Serbia for the following purposes: a) assistance in designing school curricula and standards; b) participation in social benefits programs, such as care for war veterans, pensioners, and disabled persons, and c) other voluntarily received services, under certain conditions. The grant of the individual additional rights to the members of the national communities in Article VII(5) of the Constitution of Kosovo is quite broad. They 394

THE PROTECTION OF THE RIGHTS OF MINORITIES BY MEANS OF AUTONOMY shall have a) the right to enjoy unhindered contacts with members of their respective national communities elsewhere in the Federal Republic of Yugoslavia and abroad; b) equal access to employment in public services at all levels; c) the right to use their languages and alphabets; d) the right to use and to display national community symbols; e) the right to participate in democratic institutions that will determine the national community’s exercise of the collective rights set forth in Article VII, and f) the right to establish cultural and religious associations, for which relevant authorities will provide financial assistance. The current Constitutional Framework delineates the rights of communities and their members in Chapter 4, to a great extent in a similar way as the Constitution of Kosovo envisioned in the Rambouillet Accords. The Constitution of Kosovo does not contain any firm prescription of how membership in a national community will be acquired, but stipulates in Article VII(7) that every person shall have the right freely to choose to be treated or not to be treated as belonging to a national community, and no disadvantage shall result from that choice or from the exercise of the rights connected to that choice. The same principle is included in Article 4.2. of the Constitutional Framework. 4. CONCLUDING REMARKS It is apparent on the basis of these two decisions by the international bodies that the understanding of self-government and rights of the inhabitants of the areas in question is not limited to representation of the territorial entity, that is, the Åland Islands or Kosovo, in one decision-making forum. Instead, the two arrangements contain an additional underlying idea of substantive rights of the inhabitants, which at least in the case of Kosovo are strongly linked to human rights. The Kosovo arrangement is also an example on how territorial autonomy could, in a multi-ethnic setting, be married with forms of non-territorial autonomy or cultural autonomy. However, for both the Åland Islands and Kosovo, an exclusive legislative authority is established in spheres that are relevant for the two territories. Also, for both, a special category of citizenship is presumed, although the definition of the citizenship of Kosovo is, surprisingly enough, not included in the Constitution of Kosovo (or in the current Constitutional Framework). The Kosovo Resolution of 1999 illustrates how international human rights are implemented in a statute for an area plagued by violence. Through that Resolution, the grant of human rights on a non-discriminatory basis is extended with a number of provisions that create special protection for some categories of individuals and their national communities in the area. In Kosovo, the point of departure is that the human rights are there for everyone. With its grant of special rights in the areas of participation through elections, property, and language, the Åland Islands Settlement of 1921 may go beyond what would be possible without greater difficulty at the eve of the 21st century and against the background of international human rights. Comparing the two decisions and their actual or projected outcome in a very rough way, it seems as if Kosovo had more autonomy but less special or exclusive rights 395

MARKKU SUKSI for the total body of inhabitants, while the Åland Islands would have somewhat less autonomy but more exclusive rights for the total body of inhabitants that qualify for the right of domicile. Nonetheless, both decisions contain valuable examples of minority protection. In addition, the solutions proposed for Kosovo recognise the dimension of a minority inside a minority when creating special rights for the communities, in particular for the Serbs inside the territory of Kosovo with an Albanian majority. This dimension is not present in the Åland Islands Settlement despite the fact that some 5 per cent of the inhabitants of the Åland Islands were (and still are) Finnish-speaking. Moreover, both decisions contain an element of pacification of the areas concerned by requiring demilitarization. In the Åland Islands case, demilitarization was mainly a matter of dismantling the military installations in the area and making sure that no troops were stationed there that could, for instance, threaten Sweden. Whereas the Åland Islands case contains provisions which exempt the inhabitants from general military service, the Rambouillet Accords are silent about this matter in respect to Kosovo and could, in fact, even be interpreted to mean that because defence is a federal matter under Article I(3), citizens of Kosovo could be called to military service for the Federation. The spirit of the Rambouillet Accords and the situation on the ground nevertheless speak for an alternative interpretation. Both decisions also envision a certain level of international involvement in the implementation, the Åland Islands Settlement by means of general monitoring and of a complaints procedure established in Paragraph 7 of the settlement. The complaints procedure became desuetude without any example of actual use, but in theory, it put the Council of the League of Nations in a position to interpret the Åland Islands settlement, with the help of the Permanent Court of International Justice. There is not a similar mechanism included in the Kosovo Resolution, but on the basis of that Resolution, the international community takes on an active role in the actual implementation on the ground. A step in that direction is nevertheless mentioned among the Principles to the Framework, in which Article I(5) stipulates that every person in Kosovo may have access to international institutions for the protection of their rights in accordance with the procedures of such institution. This is a reference to individual complaint procedures under human rights conventions, but for the time being, no idea exists for a collective procedure of the kind established for the Åland Islands in the 1921 Settlement. However, after the interim administration of Kosovo, the final settlement that should be reached should probably contain provisions that identify an international supervisory mechanism to oversee the application of the final settlement, either by means of general monitoring or by means of a complaints procedure, or both.16 Implementation machinery created by an international treaty, for instance, within the framework of 16

According to Article 10.1. of the current Constitutional Framework of Kosovo, natural and legal persons in Kosovo shall have the right, without threat of reprisal, to make complaints to the Ombudsperson concerning human rights violations or actions constituting abuse of authority by any public authority in Kosovo.

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THE PROTECTION OF THE RIGHTS OF MINORITIES BY MEANS OF AUTONOMY the Council of Europe, with a treaty body of some kind would probably be needed to entrench the protection of the intended status of Kosovo. Entrenchment of the legal guarantees of rights is, however, a broader issue than an international supervisory mechanism has the ability to cover and should ideally include several dimensions. It is possible to distinguish between at least six different forms of entrenchment.17 The Åland Islands case can be viewed as involving four dimensions of entrenchment, the general, special, regional, and international forms of entrenchment, which serve as an indicator to the fact that elaborate and overlapping methods of entrenchment may create stability for the arrangement. The first one entails the inclusion of a reference to Ålandic self-government in Section 120 in the Constitution of Finland, while the second one refers to the fact that the Autonomy Act is not an ordinary Act of Parliament, but enacted in the same way and under the same requirements as the Constitution, that is, a qualified majority of two-thirds in the Finnish Parliament. Regional entrenchment, again, constitutes a safeguard in that the Autonomy Act and the Act on the Possession of Real Property on the Åland Islands can only be changed by the Parliament of Finland upon approval by the Legislative Assembly of the Åland Islands. Finally, international entrenchment is a reference to the settlement under the League of Nations which has developed a firm status under customary international law and which would seem to protect the Ålandic arrangement against such actions geared at weakening the arrangement, that have not been approved by the inhabitants of the Åland Islands and that have caused protests from the international community. In the Kosovo context, the final form of entrenchment is still unclear. However, Article X on the amendment of the Constitution of Kosovo indicates a fairly high standard, because only the Legislative Assembly of Kosovo is competent to amend the Constitution of Kosovo. In doing so, it would have to take into consideration the rule that a majority of the Members elected from each national community must adopt the proposed amendment. Moreover, Article X prohibits any amendments to Article I, Sub-Sections 3-8, where the basic features of the arrangement, including the territorial integrity of Yugoslavia, are spelled out. It also prohibits amendments to Articles VI and VII, which deal with the human rights and fundamental freedoms and the rights of the national communities in Kosovo. The current Constitutional Framework can, according to Article 14.3., in the last instance be amended by the Special Representative of the Secretary General. This extraordinary piece of law could hence be regarded as being internationally entrenched under the authority of Resolution 1244 (1999). If, in a practical situation, a State denies a group of persons (e.g., an ethnic, linguistic or religious group) its rights or its share in participation in public affairs and in economic, social and cultural development, then the group may be entitled to self-determination. What then takes place is the exclusion of a group in a legal environment, which at least under international law is supposed to be inclusive. The exclusion is then not only limited to the participation in public affairs, but also may 17

See Suksi (1998) pp. 170–171.

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MARKKU SUKSI cover, through common Article 1 in the CCPR, a range of economic, social and cultural rights. The problem is, however, who is to decide on the issue of selfdetermination. Is it the group, the State or the international community? Firstly, it is undoubtedly so that the group cannot unilaterally decide on the issue. This is the message sent, for instance, by two legal cases, one of which dealing with the region of Tatarstan in the Russian Federation18 and the other with Quebec in Canada.19 Secondly, a State can, if it wants to do so, at any time include in its own constitution or its internal legal system provisions that accommodate the needs of the group, for instance, provisions on certain rights or even autonomy. In addition, two States can, at any time, make an agreement in an international treaty on a bilateral basis on the protection of a minority in one of the States and include in this treaty different arrangements. The treaty between Italy and Austria concerning the status of South Tyrol serves as an example of this. Thirdly, sometimes the involvement of the international community is a necessary element in the adjudication of conflicting claims. The international community could probably in principle give legitimacy even to secession, but in practice it is mainly interested in crafting ‘internal’ solutions in situations that may constitute a threat to peace so that international borders are not disrupted. The aim of such an activity would seem to be to establish for the disadvantaged group a guarantee to the inhabitants that are affected of such rights that are important in the context. In addition, an arrangement of that sort could try to establish a just share in the internal self-determination of a country.20 Both the Åland Islands decision of 1921 and the Kosovo decision of 1999 represent attempts to protect minorities by means of rights and autonomy so as to 18 The Tatarstan case, Decision No. 671 of 13 March 1992 by the Constitutional Court of the Russian Federation. 19 Reference Re Secession of Quebec (20 August 1998) No. 25506 (the Supreme Court of Canada). 20 This is evident, for instance, in the case of the Katangese Peoples’ Congress vs. Zaire (African Comm. Hum. & Peoples’ Rights, Communication No. 75/92), which dealt with a claim of independence for Katanga (probably on the assumption that the Katangese population would constitute a people), against the background of Article 20(1) of the African Charter on Human and Peoples’ Rights. The African Commission held that self-determination may be exercised in any of the following ways: ‘independence, selfgovernment, local government, federalism, confederalism, unitarism and any other form of relations that accords with the wishes of the people but fully cognisant of other recognised principles such as sovereignty and territorial integrity.’ The African Commission went on to say that in the absence of concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called into question and in the absence of evidence that the people of Katanga are denied the right to participate in Government as guaranteed by Article 13(1) of the African Charter, the Commission holds the view that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire. Hence in determining that the case contained no evidence of violations of any rights under the African Charter and that the quest for independence for Katanga therefore had no merit under the African Charter, the African Commission concluded that there exists different forms of (internal) self-determination that are to be preferred.

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THE PROTECTION OF THE RIGHTS OF MINORITIES BY MEANS OF AUTONOMY recognise to some extent the demands of self-determination of both the minority and the State in question. Nevertheless, the international community does not have any established procedures to deal with situations of the kind that emerged in the Åland Islands at the beginning of the 20th century and in Kosovo at the end of the same century. It may be premature to speak about the necessity of any future parties to a conflict to submit to such patterns as established in advance for these kind of situations. Case by case, certain patterns may develop, and in this respect, the decision concerning the Åland Islands in 1921 by the League of Nations may serve as an important point of reference. The decision concerning Kosovo in 1999 by the United Nations may evolve into an equally important point of reference.

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FAILED EXPERIENCES WITH AUTONOMY THE AUTONOMY OF ERITREA (1952-62): LEARNING FROM THE FAILED EXPERIENCE Eyassu Gayim 1. GENERAL BACKGROUND Eritrea emerged as a distinct political entity in 1890 when Italy proclaimed the existence of its first African colony on the shores of the Red Sea. This territory of 46,000 square miles is the homeland of nine nations and diverse communities, some of whom had differing historical connections with the neighbouring States. A few years after solidifying its grip on Eritrea, Italy established two more African colonies, one on the Mediterranean coast (Libya) and the other along the Indian Ocean (Italian Somaliland). These territories were administered by the United Kingdom during the 1940s following the defeat of the Italian colonial army by the British and the commonwealth forces. In 1949 the UN General Assembly recommended the granting of independence to Libya and Italian Somaliland,1 and, a year later, it resolved to make Eritrea ‘an autonomous unit federated with Ethiopia’,2 by resolution 390(V) of 2 December 1950 (hereinafter to be referred to as the Federal Resolution or the Federal Recommendation). Before deciding to federate Eritrea with Ethiopia, the General Assembly sent a United Nations commission to Eritrea, composed of representatives from Burma, Guatemala, Norway, Pakistan and South Africa, for the purpose of collecting the necessary information and proposing a solution.3 This Commission was expected to take into account the following factors when formulating its recommendation: a) The wishes and welfare of the inhabitants of Eritrea, including the views of the various racial, religious and political groups of the provinces of the territory and the capacity of the people for self-government; b) The interests of peace and security in East Africa;

1 See General Assembly resolution 289(IV) of 21 November 1949 which called for the granting of independence to Libya by 1 January 1952 after its three parts, i.e., Cyrenaica, Tripolitania Fezzan, were administered by the United kingdom, Italy and France, respectively. Under this same resolution, independence was to be granted to Italian Somaliland following ten more years of Italian rule subject to the UN trusteeship system (Article 76). 2 See Article 1 of resolution 289(IV) C, ibid. 3 For the resolution which provided the establishment of this Commission see ibid.

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EYASSU GAYIM c)

The rights and claims of Ethiopia based on geographical, historical, ethnic or economic reasons, including the legitimate need for an adequate access to the sea.

The Commission failed to come up with a single solution since its members could not agree on what they observed and felt was in the best interest of Eritreans. The Norwegian representatives had the impression that total union with Ethiopia was the manifest wish of the overwhelming majority of Eritreans and thus proposed that solution. The Guatemalan and Pakistani delegations had no doubt independence was the evident wish of the great majority of Eritreans and thus called for the granting of independence after a short transitional period of administration. The Burmese and South African delegations believed that the pro-independence and union groups were equally divided and hence came up with a compromise solution reconciling these positions on the basis of the establishment of ‘a self-governing unit of a federation of which the other member shall be Ethiopia, under the sovereignty of the Ethiopian Crown’.4 In the end, it was this latter idea that attracted the attention of most of the members of the UN when the Federal Resolution was adopted on 2 December 1950. The practical arrangements for establishing this autonomy were made by the British Administering Power in Eritrea with the co-operation of the UN Commissioner for Eritrea (the Bolivian delegate, Mr. Anze Matienzo). The latter was sent to Eritrea, by the UN General Assembly, for the purpose of preparing Eritrea’s constitution after consulting the inhabitants of that territory, the British Administration and the Ethiopian Government, as well as to ‘advise and assist the newly constituted Eritrean Assembly in its consideration of the Constitution’.5 This Constitution, which incorporated the Federal Act, was ratified by the Eritrean Representative Assembly on 10 July1952,6 and by Ethiopia’s Emperor, five days later.7 The emergence of the Federation was proclaimed by the Ethiopian Emperor on 11 September, the day he ratified the Federal Act.8 Unfortunately, rather than creating a political atmosphere conducive to new hope and a promising future in their federal relationship with Ethiopia, Emperor Haile Selassie exploited the confused transitional stage skilfully to assure his country’s dominant position in this new relationship. Thus, on the very day he declared the emergence of the Federation, the Emperor adopted several ‘federal’ 4 See the Report of the United Nations Commission for Eritrea, UN Doc., A/1285, pp. 25–26. For the memorandum submitted by the Burmese, South African and Norwegian delegations see ibid., pp.9–28, and for those from Guatemala and Pakistan see ibid., pp. 29–36. 5 See operative paragraph 12 of the Federal Resolution. 6 UN Doc., A/AC.44/R.141. For the text of the Constitution see The Final Report of the United Nations Commissioner for Eritrea, ORGA Seventh Session Supp. No. 15, A/2188, pp. 76−89. 7 A/AC.44/L.12. 8 ‘A Proclamation of the Entry into Force of the Federation of Eritrea with Ethiopia’, Proclamation no. 124 of 1952, Negarit Gazeta, 12th yr., no. 11, 11 September 1952, pp. 2–3.

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THE AUTONOMY OF ERITREA (1952-62): LEARNING FROM THE FAILED EXPERIENCE laws, inter alia, incorporating Eritrea into the ‘Federated Empire’ as part of the ‘Ethiopian Empire’,9 extending the application of the 1931 Ethiopian Constitution to Eritrea,10 empowering the Ethiopian ministries to function as ‘Federal authorities’11 and authorising the Ethiopian High Court and Supreme Court to serve as Federal and Supreme Courts, respectively.12 Eritreans resented the adoption of these and other ‘federal’ laws and measures13 since their new government had neither started to function or to commence its work properly.14 To make things worse, more and more Ethiopians were assigned to take ‘federal posts’ in Eritrea. The members of the Unionist Party were rewarded for their loyalty and the supporters of the proindependence parties were subjected to harassment and isolation.15 Political anxiety was also accompanied by economic and social insecurity as an increasing number of industrial and commercial enterprises were either induced or pressured to relocate to Addis Ababa, thus aggravating the problem of unemployment in Eritrea. It soon became obvious that the Ethiopian authorities feared the political implications of allowing an economic boom in that territory, since this could end up strengthening Eritrea’s self-reliance, pride, identity, and an aspiration for independence. The more Eritreans manifested their opposition to such kinds of Ethiopian policies and measures, the more the Eritrean Government was pressed by the Federal authorities to take swift measures to deal with what they perceived as being 9 See Article 2 of Order no. 6, ‘The Federal Incorporation and Inclusion of the Territory of Eritrea with Ethiopia Order’, Order no. 6 of 1952, Negarit Gazeta, 12 yr. No. 1, 11 September 1952, pp. 2–3. 10 Ibid., Articles 5, 7 and 8. 11 ‘The Designation and Extension of Functions of Our Federal Ministers Order’, Order no. 7 of 1952, ibid. 12 ‘The Federal Judiciary Proclamation of Ethiopia’, Proclamation no. 130 of 1952, ibid., 12th yr. no. 4, 30 September 1952. 13 See further ‘The Federal Revenue Proclamation of 1952’ Proclamation no. 126, ibid., 12th yr. no. 2, pp. 8–9; ‘The Application of Currency and Legal Tender Proclamation’, Order no. 127 of 1952, ibid., 10–12; ‘The Federal Transport Proclamation of 1952’, ibid., pp. 13–14; and ‘The Extension of Certain Legislations as Federal Legislation Proclamation’, Proclamation no. 128 of 1952, ibid., pp. 10–12. 14 Note that from 11 to 15 September an Eritrean Executive Committee was functioning on the basis of the arrangements made by the departing British Administration, a body that adopted important measures which would bind future Eritrean Governments. There was a strong local reaction to its activities in part because it was not mandated by the Eritrean people or the Eritrean Assembly to perform those tasks (e.g. the granting of close to two thousand concessions to foreigners), but also because its existence was not envisaged by the Federal Resolution. 15 M. Perham, The Government of Ethiopia (London: Faber and Faber, Ltd., 1969), pp. xxxii; J. Spencer, Ethiopia At Bay (Algonac: Reference Publications Inc., 1984), pp., 303-4; See further the declassified materials from the United States Archive, ‘United States-Ethiopian Relations – 1953’, Department of State Instructions, 23 February 1954, no. CA 4535, from Dulles to Addis Ababa, Asmara, London, Paris, Rome Embassies and Consulate, in 611.75/22354, pp. 1-2; and Circular Airgram, control no. 1526, 19 January 1953, from the Department of State (Acheson) to ‘Certain American Diplomatic and Consular Officers’ ibid., p. 5.

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EYASSU GAYIM ‘anti Ethiopian’ sentiments and activities. Whenever the Eritrean authorities failed to respond as expected, they would face ‘federal Orders’ from Addis Ababa, i.e. from the ‘federal’ Executive and Judiciary16, which they were expected to implement − and which entailed disregarding those constitutionally guaranteed human rights and freedoms.17 By the end of the 1950s, the frustrated and ‘silenced’ Eritrean opposition had gone underground. On 1 September 1961 the armed struggle for selfdetermination had started. The autonomy and Federation themselves were declared as null and void by Emperor Haile Selassie, on 15 November 1962, thus turning Eritrea into an Ethiopian province henceforth to be placed under ‘the unitary system of administration’.18 Thus, Ethiopia’s official language (Amarigna) became the official Eritrean language, its official days became Eritrean holidays, and all matters dealing with Eritrea’s political, economic, social and cultural affairs were to be decided from Addis Ababa, and solely by the Ethiopian authorities. The armed liberation struggle in Eritrea went on for thirty years, until the Ethiopian army capitulated in May 1991, and Eritrea started to govern itself once again through the Provisional Government established by the Eritrean People’s Liberation Front. After the UN supervised referendum of April 1993 confirmed that independence was the unequivocal wish of the Eritrean people, the country joined the United Nations shortly thereafter. This presentation is not concerned with this latter period of self-government, but that which was arranged by the UN Federal Resolution in 1950. 2. THE INTERNATIONAL CHARACTER OF THE ARRANGEMENT The autonomy scheme that was adopted for Eritrea in 1950 was not a response to any domestic dispute that existed between Eritreans (as minorities) and the Ethiopian State (representing the majority). Ethiopia did not even administer Eritrea at the time. On the contrary, it had recognised Italy’s sovereignty over this territory throughout the Italian rule. Evidently, there were many European and Latin American States that were determined to see to it that the solution that was to be adopted for Eritrea should protect the interests of Italy and the Italian minority in 16

Note that under the Federal Judiciary Proclamation, the Ethiopian Courts, acting as ‘federal courts’, could issue decrees, orders, judgements and decisions (Article 2) on federal matters. While Eritrean courts had powers over domestic matters, the Federal Courts could take up the same question on appeal or on the grounds that they constituted ‘federal’ matters (Article 3(s)). 17 For the cases that were brought before the Eritrean courts dealing with human rights at the time consult, C. Smith, ‘Human Rights in Eritrea’, 18 The Modern Law Review, (1955), pp 484–485; International Commission of Jurists, ‘Eritrea’s Claim to Self-Determination’, The Review, 1989, no. p. 12; and E. Gayim, The Eritrean Question: The Conflict Between the Right of Self-Determination and the Interests of States (Uppsala: Iustus Förlag, 1993), pp. 422–428. 18 ‘Termination of the Federal status of Eritrea and the Application to Eritrea of the System of Unitary Administration of the Empire of Ethiopia Order’, Order no. 27, 1962, Negarit Gazeta, 22nd yr. No. 3, 15 November 1962.

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THE AUTONOMY OF ERITREA (1952-62): LEARNING FROM THE FAILED EXPERIENCE Eritrea.19 When the UN General Assembly established the Commission for Eritrea for the purpose of proposing a solution, it too had to instruct this Commission to collect the necessary information, inter alia, from ‘the representatives of the population of the territory, including minorities’. Article 6 of the Federal Resolution also required both Eritrea and the Federal Government to guarantee to Eritrea’s foreign residents their fundamental human rights and freedoms, including their economic rights.20 What is more, by resolution 530(V) of 29 January 1952, the General Assembly had instructed the British Administration, in no uncertain terms, to take the required steps to guarantee Italy and the Italians that were in Eritrea their rights and interests.21 In a sense, therefore, Eritrean autonomy also provided the cover under which the interests of the Italian minority were to be protected. However, this aside, this question was not approached as a question of minorities, but as one that concerned the future of a non-self-governing people per se. The territory was not self-governing, and its inhabitants were treated as a people, technically speaking, i.e. a juridical family that was composed of diverse social groups (including European), but that evolved into an entity in the course of the sixty years of European rule. It is also worth noting that while the Federal Resolution was adopted after taking into consideration, inter alia, the wishes and welfare of the inhabitants of Eritrea ‘and the capacity of the people for self-government’, strictly speaking, this question was not treated as one that concerned the application of articles 73 or 76 of the UN Charter.22 After all, neither Italy (the former colonial power) nor the United Kingdom (which was administering Eritrea at the time) had assumed the obligation to promote a full measure of self-government in Eritrea. Italy had renounced 19

See GAOR, Fourth Session, First Committee, 279th meeting, p. 26; A/C.1/SR.241, pp. 2 and 12, A/C.1/SR.244, p. 5 & A/C.1/SR.245, p. 6. 20 ‘The rights and interests of foreign nationals resident in Eritrea’, states the last paragraph of Article 6, ‘shall be guaranteed in accordance with the provisions of paragraph 7’. The latter paragraph deals with, inter alia, the obligations of Eritrea and the Federal Government to ensure the right to own and dispose of property, to exercise profession and equality before the law without discrimination ‘against foreign enterprises in existence in Eritrea engaged in industrial, commercial, agricultural, artsian, educational or charitable activities, [n]or against banking institutions and insurance companies operating in Eritrea’. 21 This resolution calls for, among other things, the protection of the ‘[p]roperty, rights and interests of Italian nationals, including Italian juridical persons, in Eritrea’ (Article VII(1)), to enable them to ‘sell their movable and immovable property, realize and dispose of their assets’ and transfer the proceeds of these transactions to where they want to settle (Article VII(2)), and to see to it that they would ‘enjoy all the rights in industrial, literary and artistic property’ (Article IX(2)). 22 Article 77 of the Charter suggests that the territories that were detached from the enemy States during the Second World War may be placed under the trusteeship system, i.e., for the purpose of promoting their self-government or independence as referred to in the trusteeship system (Article 76). Article 73 is concerned with the declarations made by the Administering Powers of the non-self-governing territories to promote a full measure of government to the peoples concerned.

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EYASSU GAYIM sovereignty over Eritrea under article 23 of the 1947 Paris Peace Treaty, and the British rule in Eritrea was understood, from the beginning, to be provisional in character, i.e. until the future of all the territories that were occupied from the enemy States were determined by the Allied Powers at the end of World War II. The major powers wrangled with each other to resolve this question and the many other disputed post-war issues during their Yalta, Potsdam, Berlin, London and Paris meetings, but in vain. By the time the peace conference was convened in 1947 all that they could agree upon, as far as the fate of the Italian colonies, was that Italy should renounce sovereignty over her colonial possession. Under paragraph 3 of Annex XI to the 1947 Paris Peace Treaty they agreed further that they would jointly resolve this question within one year from the entry into force of that Peace Treaty. Their decision was to be made ‘in the light of the wishes and welfare of the inhabitants and the interests of peace and security, taking into consideration the views of other interested Governments’. If they failed to do so, it was stipulated, the matter would ‘be referred to the General Assembly of the United Nations for a recommendation’, whose resolution would then be accepted and implemented by these powers. Hence, it was only because the major powers had failed to resolve this question of Italian colonies that the UN was seized of this matter. This is why the opening paragraph of the Federal Resolution makes explicit reference to the fact that the powers concerned had agreed, a priori, ‘to accept the recommendation of the General Assembly on the disposal of the former Italian colonies in Africa and to take appropriate measures for giving effect to it . . .’. However, besides the major powers, there were other States too with special interests, especially Italy and Ethiopia, that were also consulted.23 This was why the proposed federal scheme was described by some delegations as ‘a well balanced document, carefully drafted with the participation of all the interested parties’.24 In fact, some of the interested States had to declare before the UN General Assembly that they would accept the proposed federal recommendation and co-operate in its implementation if it were to be adopted in the form they had agreed to when presenting it to the UN General Assembly.25 Finally, because the external interests that were reconciled through this federal solution were so complex, inter-twined and sensitive, there were many observers that considered the United Nations itself as a party to that international arrangement

23

See A/1388, p. 2. ‘Ethiopia had had to know exactly what the conditions of the proposed federation would be’; stated the Ethiopian Foreign Minister, ‘for that reason, the Federal Act had been drafted even before the voting of resolution 390(V)’. A/AC.61/SR.40, p. 245. 24 A/AC.38/SR.53, p. 338. For the process of bargaining that took place when the provisions of the federal scheme were formulated see the confidential discussion that took place between the representatives of the United States, the United Kingdom, Italy, Ethiopia and other States, in the report of the UN General Assembly Interim Committee (A/1388, p. 2). For more detail consult Gayim, pp. 141, 341. 25 See A/PV315, p. 535; ibid, p 530; A/AC.38/SR.52, p. 331; and A/AC.38/SR.48, p. 308.

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THE AUTONOMY OF ERITREA (1952-62): LEARNING FROM THE FAILED EXPERIENCE in that it would be the guarantor for the survival of Eritrea’s autonomy.26 This Organisation had not only adopted this solution, but also had to send its representative to prepare the Eritrean constitution, to approve its ratification by Eritrea and Ethiopia (as stipulated in Article 13 of resolution 390(V)), and the General Assembly had to sanction the emergence of the Federation (by resolution 617 (VII) of 17 December 1952), following the fulfilment of all the requirements. ‘What the United Nations did not do in Eritrea was to administer the country’, remarked Duncan Cumming correctly. ‘All the General Assembly had to do was to decide on what should happen to the country.’27 3. THE ANATOMY OF THE AUTONOMY Under the Federal Resolution (and the Federal Act incorporated therein) Eritrea was to be ‘an autonomous unit federated with Ethiopia under the sovereignty of the Ethiopian Crown’ (Article 1). This ‘unit’, which is also referred to as a ‘state’, in Article 3 (concerning ‘interstate’ commerce and communications), was to be federated with Ethiopia, not under Ethiopian sovereignty, but ‘under the sovereignty of the Ethiopian Crown’. The idea was to have the Crown act as the symbolic Head of the Federation, rather than as the sovereign authority in Eritrea − in much the same way as ‘the British Crown’ was the Head of the Commonwealth of Canada, Australia, New Zealand, South Africa and the United Kingdom. If the point in federating Eritrea with Ethiopia had been to place it under ‘the Ethiopian sovereignty’ there would not have been any reason for stipulating a radically different constitution and form of government for Eritrea in violation of the Ethiopian sovereignty.28 Thus, Eritrea was not to be united with Ethiopia, but to be associated with Ethiopia, through a clearly stipulated federal formula.29 The expectation was to see the co-existence of two distinct political entities, but under the one federal umbrella 26 According to the Bolivian delegate (who later became the UN Commissioner for Eritrea) by associating Eritrea with Ethiopia in such a clearly stipulated way, it was fair to expect that the United Nations ‘would be able to provide all the necessary guarantees to ensure that the partnership would not lead to the subordination of one of those peoples to the other’ (A/AC.38/SR..53, p. 336). See also the remarks of the Chilean delegate after the Federal resolution was adopted in A/PV.315, p. 536. 27 ‘The U.N. Disposal of Eritrea’, 52 Africa Affairs (1953), no. 207, p. 135. 28 See the statement of the UN Commissioner for Eritrea, in A/AC.61/SR.40, p. 239; and also that of M. Kamanda, The Juridical Status of Eritrea in the Federal Relations with Ethiopia (Trinity, 1968) p. 470. For the opposite views considering the UN scheme as nothing less than a decision to unite Eritrea with Ethiopia in line with power politics, see G. Schwarzenberger Power Politics, 3rd ed., (Stevens and Sons, London, Ltd., 1987), p. 33. 29 See the sixth preambular paragraph of the Federal Resolution, which considers the proposed federation as being motivated by the importance of resolving the Eritrean question on the basis of ‘its close political and economic association with Ethiopia’ (Emphasis added). Note further that all the draft resolutions that were submitted with a view to uniting Eritrea with Ethiopia were rejected.

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EYASSU GAYIM and Head of State.30 This was why Eritrea’s distinct identity had to be reaffirmed by its Constitution, which recognised its territorial integrity (Article 2), and guaranteed its democratic form of government (Article 4 and 16) and its national symbols, such as flag and seal (Article 21). It is true that the Federal Act considered the federated territory as ‘a single area for customs purposes’ (emphasis added), i.e. so that there would not be barriers to the free movement of persons and goods (Article 3), and that there would be a single nationality throughout the Federation (Article 6). This was to underscore the fact that, at the international plane, the actor would be only ‘the Federal State’ rather than the Ethiopian or the Eritrean State, although both would continue to be distinct subjects of international law. The jurisdiction of the Eritrean and the Federal Governments was delimited in Article 3 of the Federal Act. Eritrea was empowered to deal with its own ‘internal police, to levy taxes to meet the expenses of domestic functions and services, and to adopt its own budget’ besides being responsible for all other matters that did not fall under the jurisdiction of the Federal Government. Items dealing with foreign affairs, foreign, interstate commerce and communication, defence, currency and finance, the maintenance of the integrity of the federation, and the collection of taxes for federal matters, were however all identified as Federal. One of the obvious positive features of this solution lies in the recommendation made to assure the Eritrean people both territorial and cultural autonomy. Moreover, this was to be accompanied by selfgovernment, implying ‘legislative, executive and judicial powers in the field of domestic affairs’31, which was to be the mechanism for the pursuit of political, economic, social and cultural development and the enjoyment of human rights and freedoms, more or less as guaranteed by the Universal Declaration of Human Rights.32 However, the aspirations were short-lived and the expectations unrealistic. On the other hand, these too proved to be powerful engines for galvanising the sense of Eritrean political consciousness and nationalism in the years that followed, once the struggle against the Ethiopian domination took the form of an armed struggle.

30

That Eritrea had a distinct legal personality was also evident from the fact that it had ratified the Eritrean Constitution two months before the federation was proclaimed, which indicated its separate political existence as an entity different from Ethiopia. Before Italy renounced its sovereignty over Eritrea, under the 1947 Peace Treaty, Ethiopia also acknowledged, Eritrea’s distinct nature through the international frontier treaties concluded with Italy. For the Ethio-Eritrean treaties demarcating the frontier line between Italian Eritrea and Ethiopia consult UN Doc. A/AC.18/103, pp. 7−9; and E. Hertsle (ed.), Map of Africa by Treaty, Vol. 2 (London, 1967), p. 454. 31 See Article 2 of the Federal Act. 32 Note that many of the fundamental rights and freedoms that were proclaimed by the 1948 Universal Declaration of Human Rights were incorporated into the Constitution of Eritrea. Moreover, the Federal Act, in Article 7, obliged Eritrea and the Federal Government to ensure many of these rights and freedoms ‘to residents in Eritrea, without distinction of nationality, race, sex, language or religion’.

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THE AUTONOMY OF ERITREA (1952-62): LEARNING FROM THE FAILED EXPERIENCE 4. THE FLAWS OF THE AUTONOMY ARRANGEMENT 4.1. The Structural Problems. Structurally speaking Eritrea’s autonomy had several flaws. They include (i) the naïve expectation that the proposed democratic political system and autonomy of Eritrea would co-exist in harmony with the authoritarian feudal system and government of Ethiopia under ‘the Crown’, (ii) the failure in providing appropriate mechanisms for protecting Eritrea’s democratic institutions and autonomy, (iii) the failure in establishing a federal constitution and government that was distinct from that of Ethiopia and Eritrea, and (iv) the creation of a loophole under which Ethiopia’s Emperor would intervene in Eritrean affairs using the office of the Representative of the Emperor. Let us reflect on these points and their consequences separately. (i). That Eritrea’s democratic system of government and autonomy was doomed from the start was obvious, since the Eritrean political system was incompatible with that of Ethiopia. Either the Ethiopian political system would have to change or that of Eritrea would have to be thwarted. It is to be recalled that under the 1931 Ethiopian Constitution, which was operative when the federation was established, Emperor Haile Selassie I of Ethiopia (whose very title was ‘Elect of God, King of Kings, Lion of Judah’), exercised ‘supreme’ and ‘indisputable’ power (Articles 6 and 11). His powers, under this Constitution, included appointing, promoting and dismissing Ethiopia’s ministers and determining their functions and salaries (Article 11). He could convene the Ethiopian Parliament, suspend it (Articles 8 and 40), issue laws when the parliament is not in session (Article 9), and prevent laws from having practical effect if he did not like them (Article 34). The judges too were appointed by him, and administered justice in his name (Article 50). This Constitution, which was said to be a gift from the Emperor, did not even recognise most of the basic human rights and freedoms e.g. the rights to freedom of speech, assembly and religion.33 By contrast, Eritrea possessed a basically democratic form of government that was shaped in the spirit of a separation of power, between executive, legislative and judiciary, and a political system that was largely in line with the principle of government by the people and for the people – using the free and fair election system.34 This Constitution incorporated, in Article 22, an elaborate list of fundamental human rights and freedoms, which were enshrined in the 1948 33

In 1955 a revised constitution was adopted to give the impression that the political system had taken the form of a constitutional monarchy. But the difference between the two systems was merely formal. In practice, however, it was nothing more than ‘a constitutionalized absolutism’. See Robert L. Hess, Ethiopia: The Modernization of Autocracy (Cornell University Press, London, 1970), p. 125. Under Article 26 of this Revised Constitution the supreme powers of the country were left in the hands of the Emperor. For the powers of the Emperor see further Articles 27, 30, 33–34, 88 and 91. 34 See Articles 16, 18-19, 53, 72-3 and 86 of the Eritrean Constitution.

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EYASSU GAYIM Universal Declaration of Human Rights (i.e., the document which was viewed by many States even in 1952 as too radical for the time). Hence, when Eritreans started to exercise their fundamental human rights and freedoms, challenging the Ethiopian interference in what they perceived as Eritrea’s domestic matters,35 the subjects of Emperor Haile Selassie in Ethiopia, especially those in neighbouring Tigray36 were following this experiment closely, a development which was worrisome to the absolute monarch of Ethiopia. ‘It was hardly to be expected that the Lion of Judah would lie down in federal harmony with the very new-born lamb of Eritrean democracy.’37 (ii). The fact that no mechanism was created to protect Eritrea’s democratic government and institutions, such as, the provisions of a petition system to the UN General Assembly or to any independent third body when the Federal Act was violated, gave Ethiopia the confidence that it could get away with any such violations. Nor were Eritreans protected from the possibilities of their own authorities conspiring with the Ethiopian Government to undermine this autonomy. The UN Commissioner was urged by ‘wide sections of the Eritrean population’ to formulate the Eritrean Constitution in such a manner as to prevent the establishment of a very powerful Executive Chief, since there was always the danger of abuse of power that may well work to the detriment of Eritrea’s autonomy. Their preference was the establishment of the parliamentary model of government (with two chambers).38 The Commission, however, did not want to follow this option, convinced that it was not ‘necessary to adhere to the classic division of powers by giving the Assembly political control over the Executive’.39 Instead a powerful presidential office was established, as desired by Ethiopia and their allied Eritrean Unionist Party.40 As it turned out later, the adopted Constitution authorised the Eritrean Chief Executive to ensure public order and security (Article 76(2), to direct the administrative and public services (Article 76(2)), to ensure the enforcement of laws (Article 76(1)), convene the Assembly (Article 76(3)) propose legislation (Article 76(5)), issue orders when the Assembly was not in session (Article 78(3)), and even adopt measures for temporarily limiting the exercise of human rights and freedoms. Further, he was empowered to summon the Council of the Secretaries of the Executive Department (Article 74(5)), and to Chair the Civil Service Commission 35

See supra note 17 and Gayim, supra note 18, pp. 424–426. Note that this province was the seat of the Ethiopian State only as far back as the late 1880s and its inhabitants shared a linguistic, religious and ethnic bond with the Eritrean majority (the Tigrigna). In 1942 there was an uprising in Tigray, which was crushed only with the help of the British Air Force. 37 Perham, supra note 15, p. xxxii. 38 See the statements of the Commissioner (in his Progress Report, A/1959/Add.1, p. 25) and the positions taken by the different Eritrean parties united as the Democratic Front (A/1959, pp. 42-58). 39 A/1959/Add.1, p. 35. 40 See A/1959, pp. 45 and 130. 36

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THE AUTONOMY OF ERITREA (1952-62): LEARNING FROM THE FAILED EXPERIENCE which appoints, promotes, transfers or discharges officials (Article 82). As if this concentration of power was not worrisome in itself, he was also not to be ‘answerable for any act performed by him in the course of his duties except for a grave violation of the Constitution’ (Article 75(1)). It goes without saying that the Emperor of Ethiopia was grateful to the UN Commissioner for creating such a convenient structural arrangement inside Eritrea, since it was a question of time before Eritrea’s autonomy would disappear, once its Chief Executive was made to co-operate with the Ethiopian authorities. In 1955 the Executive Chief (Mr. Tedla Bairu) and the President of the Assembly were summoned to Addis Ababa, accused of having violated the Federal laws. Mr. Bairu was forced to resigned, and replaced by the Vice Representative of the Ethiopian Emperor in Eritrea, Mr. Asfaha Wolde Michael. The latter wasted no time in reorganising the new Eritrean Executive, in suppressing human rights, and in making the arrangement for the second parliamentary election as desired by the Ethiopian Government. The election was conducted in the face of widespread political terrorism (carried out by gangs that supported the pro-unionist groups), a state of emergency and serious electoral irregularities. The consequence, as predicted, was the convening of the second Assembly, which was dominated by prounionist members. Henceforth, the political history of Eritrea was basically a history of how autonomy was fragmented step by step, until the Chief Executive finally announced before the Assembly, on 14 November 1962, that autonomy was no longer desirable or necessary. The next day, Ethiopia’s Emperor issued Order no. 27 of 1962 declaring Eritrea’s autonomy and the Federation null and void. (iii). Although the Federal Resolution envisaged the existence of a Federal Government (Article 3), nothing was said about what form this Government was to take or how it should be established. All that was underscored, in this connection, was that Eritreans would participate therein ‘in accordance with law and in the proportion that the population of Eritrea bears to the population of the Federation’ (Article 5). Thus the Emperor of Ethiopia became free to unilaterally decide how this proportional representation of Eritreans was to be reflected in the Federal Government, by Order no. 9 and Proclamation 125 of 11 September 1952. Accordingly, he decided that the Eritrean Assembly should select five representatives for membership in the Ethiopian Chamber of Deputies, and that he would appoint three Eritreans to the Ethiopian Senate.41 This way the nature of the ‘federal legislative body’ was determined – although the Emperor also had the powers to adopt and proclaim laws under the Ethiopian Constitution. This Eritrean representation in the ‘federal legislative body’ had nothing more than a symbolic character since Eritreans were outnumbered by Ethiopians in that they represented 13 per cent of the Ethiopian population, but also because the Ethiopian Parliament could not challenge the absolute powers of the Emperor. The UN Commissioner was asked by a large section of the Eritrean population to establish a distinct federal 41 See ‘The Eritrean Members of Our Chamber of Deputies Proclamation’, Proclamation no. 125, Negarit Gazeta, 12th yr. no. 1, 11 September 1952, p. 6; ‘The Eritrean Members of Our Senate Order’, Order no. 9, ibid., p. 5.

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EYASSU GAYIM government, separate from that of Ethiopia and Eritrea.42 However, he rejected this line of thought arguing that this had not been provided for in the Federal Resolution. Instead, he endorsed the Ethiopian view (which was also supported by the Administering Power of Eritrea) that the Ethiopian Government can function as the Federal Government and ‘protect’ Eritrea’s autonomy.43 Thus, Emperor Haile Selassie adopted unilateral laws, inter alia, empowering the Ethiopian ministries to function as ‘federal authorities’44 and authorising the Ethiopian High Court and Supreme Court to serve as the Federal and Supreme Courts, respectively.45 If there was a federal body that was provided in clear terms, under the Federal Resolution, it was the Imperial Federal Council, which was to ‘meet at least once a year’ for the purpose of offering ‘advise upon the common affairs of the Federation’ (Article 5).46 Again, as its name suggests, this body had no power save for giving advice, and proved to be ineffective. Clearly, then, the Ethiopian side was acting both as a party to the Federation and as the Federal Government, in disregard of the very principle of federation which implies association or union ‘of states under a central government distinct from the individual governments of the separate states’.47 Even some of the Federal laws that were formally adopted could not hide the fact that there was no difference between the Federal Government and the Ethiopian Government.48 (iv). The creation of a special Office for the Representative of the Ethiopian Crown in Eritrea by the UN Commissioner opened the door which the Ethiopian Emperor had hoped for in order to intervene in the internal affairs of Eritrea. The Commissioner recognised such a representation was not foreseen under the Federal Resolution. Nevertheless, he became convinced that such an office should not only

42

See the position of the Eritrean Democratic Front in A/1959/Add.1, p. 3. See A/1959/Add.1, p. 25. What this means was that Ethiopia would be now be free to ‘determine the relationship between the Federal Government and the members of the Federation’ by establishing ‘appropriate measures for the protection of rights of both of the Federation and its members’. A/1959/Add.1, p. 17. 44 ‘The Designation and Extension of Functions of Our Federal Ministers Order’, Order no. 7 of 11 September 1952, Negarit Gazeta, 12th yr. no. 1, pp. 2–4. 45 ‘The Federal Judiciary Proclamation of Ethiopia’, Proclamation no. 130 of 1952, ibid., 12th yr. No. 4, 30th September 1952. 46 On 11 September 1952 Emperor Haile Selassie issued Order no. 8 establishing this Council. It was composed of ten members, five from Eritrea and five from Ethiopia, and started to meet as of 3 November 1952. See ‘The Imperial Federal Council Order’, Order no. 8, Negarit Gazeta, 12th yr. no. 1, 11 September 1952. 47 See Random House Webster’s College Dictionary (Random House, New York, 1999), p. 481. 48 ‘The term ‘Imperial Ethiopian Government’ as used in this Proclamation’, states Article 18 of the Federal Judiciary Proclamation, ‘is synonymous with the term “Federal Government” and includes any and all ministers, departments, services, organs, organizations, and coorporations, including officials, of said Imperial Government’. Proclamation no. 130A of 1953. 43

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THE AUTONOMY OF ERITREA (1952-62): LEARNING FROM THE FAILED EXPERIENCE be established, but be even given ‘certain formal powers’.49 The fact that a large section of the Eritrean population was opposed to the creation of this office did not matter that much.50 The Commissioner was committed in this regard to support the Ethiopian position regarding the establishment of such an office, although he did not agree with the Ethiopian demand regarding the granting of special powers to this Representative.51 4.2. The Autonomy as an Imposed Solution 4.2.1. Self-determination v. United Nations’ Determination. If one proceeds from what is stated in Article 1(2) of the UN Charter, i.e. that one of the purposes of the UN is promoting the principle of equal rights and selfdetermination of peoples, a task that was specifically assigned to the UN General Assembly, one will be tempted to conclude that the ‘autonomy solution’ which was adopted must have been consistent with the principle of self-determination.52 Again, considering the kind of self-government that was arranged for Eritrea, one would be equally deluded into believing that this solution must have been consistent with the UN Charter – especially because reference is made to the promotion of a full measure of self-government when it comes to the future of the non-self-governing territories (Articles 73 and 76), and self-government can be one of the means of exercising self-determination.53 49

They include the power of installing the Chief Executive of Eritrea in the name of the Emperor, delivering speeches from the throne and requesting the Eritrean Assembly to reconsider draft legislation, which are deemed to be encroaching on the Federal jurisdiction. See Articles 12 and 14.2 of the Eritrean Constitution. 50 See the position of the Eritrean Democratic Front in A/1959/Add.1, p. 4. 51 See the statement of the Commissioner, in A/1959/Add.1, p. 25. For the Ethiopian demand see A/1959/Add.1, p. 139. Note that the actual preference of the Ethiopian Government was to see to it that this Representative would serve as the link between the Ethiopian and Eritrean executives (A/1959, p. 129). This, in fact, was what actually happened by the middle of the 1950s when the Vice-Representative of the Emperor, Mr. Asfaha Wolde Michael, became the Chief Executive of Eritrea. 52 See Article 55 cum 60. 53 As stated in principle 5, paragraph 4 of the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, ‘the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right to self-determination’. Note that this principle was also acknowledged by General Assembly resolution 742 (VIII) of 27 November 1953. That the manner in which a non-self-governing people exercises self-determination in this manner was clarified by the United Nations after the fate of Eritrea was decided does not change the obvious fact that the UN was obliged to respect the will of a non-self-governing people, i.e., its self-determination. The principle of self-determination is not only inscribed in the UN Charter, its validity was also reaffirmed by the General Assembly (see resolution 545(VI) of 5 January 1952) both as a fundamental

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EYASSU GAYIM Further, because the Federal Act was ratified by both the Eritrean Representative Assembly and the Ethiopian State, this too gives the impression that the adoption of the autonomy in Eritrea might be reconcilable with the principle of self-determination.54 Last but by no means least, since the ‘autonomy solution’ was presented as one that was intended to reconcile the conflicting wishes of the Eritreans55 one may get the impression that this solution might not be in conflict with the spirit of self-determination since it incorporated the wishes of all the different Eritrean groups. In truth, however, the UN sponsored autonomy for Eritrea was hardly reconcilable with the principle of self-determination. To begin with, the recommended autonomy and political status (as a federal unit) was not adopted after consulting the Eritrean people on whether they wished that arrangement.56 It should be recalled that there were many draft resolutions that were tabled by some States calling for the application of the principle of self-determination by holding a referendum that would enable Eritreans to choose between independence, union and federation. All these draft resolutions were rejected.57 Obviously the Eritrean Representative Assembly that was constituted to consider the constitution that was prepared for it by the UN Commissioner did ratify that constitution. But, it was equally true that this Assembly was told by the Commissioner ‘not to discuss the United Nations resolution’ but ‘to adopt and ratify the Federal Act’.58 As the Commissioner put it: ‘The decision to establish a Federation had been reached after serious study and an investigation on the spot, in the course of which the different views of persons representing various parts of Eritrea had been heard. The human right (resolution 421D(V) of 4 December 1950), and as ‘a prerequisite to the full enjoyment of all human rights’ (resolution 637(VII) of 5 January 1952) before the entry into force of the Ethio-Eritrean federation was sanctioned. 54 See the statements of the Ethiopian Emperor considering this arrangement as consistent with the principle of self-determination (A/AC.44/L.12, p. 7 & A/AC.44/L.19, p. 8) When the Danish delegation supported the federal scheme it too argued that this solution represented a fair degree of self-determination (A/AC.38/SR.48, p. 306). See also the statements of the delegations from United States (A/AC.38/SR.54, p. 341), Argentina (A/AC.38/SR.55, p. 347), the United Kingdom (ibid., p. 349); Canada A/AC.38/SR.49, p. 309) Bolivia (A/AC.38/SR.55, p. 347), Iraq (A/C.3/SR.453, p. 214) and Lebanon (A/C.3/SR454, p. 219 para 17) 55 See the statement of the UN Commissioner for Eritrea in A/1959, p. 16; and the views expressed by many other States to this effect in A/AC.38/SR.55, p. 349; A/AC.38/SR.53, p. 334; A/AC.38/SR.48, p. 305; A/AC.38/SR.54, p. 339. 56 For details consult Gayim, supra note 17, Part III, chaps. 2, 4, and Part IV, chaps 4−6; T. Fessehatzion, ‘The International Dimensions of the Eritrean Question’, 6:2 The Horn of Africa (1983), p. 78; and T. Meron and A. M. Pappas, ‘The Eritrean Autonomy: A Case Study of a failure’, in Y. Dinstein (ed.) Models of Autonomy (Transaction Books, New Brunswick, 1980), p. 212. 57 See the drafts submitted by Argentina (A/C.1/SR.17/L.21); Iraq (A/C.1/SR.17/L.16), and the joint draft tabled by Brazil, India, Iraq, Liberia and the United States (A/C.1/SR.17/L.22). 58 A/AC.44/L.9, p. 1.

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THE AUTONOMY OF ERITREA (1952-62): LEARNING FROM THE FAILED EXPERIENCE settlement of the problem of Eritrea was a political compromise solution. It was not proposed to consult the population on the Federation, for that had been decided by the General Assembly in its solution; but the support of the population had to be enlisted in putting that resolution into 59 effect.’

Even the model of Eritrean and Federal Governments that were arranged had defied the expressed wishes of the overwhelming majority of the Eritrean population.60 Obviously, there were divergent wishes expressed when it comes to the political status of the country, but these views were hardly equally divided, since the unionist position was expressed where political terrorism was widespread. The majority’s wish was, as the Guatemalan and Pakistani delegations inside the UN Commission for Eritrea noted, in favour of independence.61 This autonomy and self-government had very little to do with self-determination since neither its form (the status) nor its substance satisfied the aspirations of the Eritrean population at large.62 By intervening in what was declared to be Eritrean affairs, the Ethiopian Government denied Eritreans the means by which they could have freely pursued their internal political, economic, social and cultural development. Step by step, the structures of the autonomy were dismantled, and what was promised when the federation was proposed and established never materialised − including the objectives of ensuring respect for Eritrea’s identity, self-rule, local languages, human rights etc. 4.2.2. Power Politics as the Determinant Factor If the truth is to be told in clear terms, what was reconciled when ‘resolving’ the Eritrean question in 1950, was the vital interests of external powers and some of their citizens who lived in Eritrea at the time. Autonomy and federation were merely the cover under which Ethiopia was to protect those interests in return for its domination of Eritrea, the understanding being if the latter failed, it would loose Eritrea, in which case other solutions would be worked out to protect the same foreign interests. To understand fully what these external interests were or how they were reconciled or balanced in the framework of this autonomy solution, one should reflect on how the question of Eritrea and the many other territories occupied by the 59

A/1959, p. 101. See for example, the position held by the supporters of the Eritrean Democratic Front (which was the amalgam of many political parties) proposing the establishment of the parliamentary form of government for Eritrea and suggesting that the federal government should be distinct from that of Eritrea and Ethiopia. But, both these demands were not accepted. See A/1959, pp. 42–58, and A/1959/Add.1, p. 3. 61 See Gayim, supra note 17, pp. 318−323 62 Even if Eritreans were to have freely accepted the political status based on an autonomous federal unit associated with Ethiopia, which was not the case, this does not mean that selfdetermination had been exercised. ‘To conceive of self-determination as synonymous with self-government was to mistake the form for the substance and might jeopardize the very rights which were to be promoted.’ A/C.3/SR.447, p. 175, para. 28. 60

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EYASSU GAYIM victorious States was approached at the end of World War II. From 1945 until 1947 the fate of the former Italian colonies and the other politically sensitive post-war questions was approached from the point of view of out right power politics, in its ‘naked and unashamed’ form.63 For example, in one of the excerpts from the transcript of the big power meeting of 22 July 1945, we read the following: Stalin: ‘We learn from the press, for instance, that Mr. Eden, in a speech in the British Parliament, declared that Italy has lost her colonies for ever. Who decided that? If Italy has lost them, who found them? (laughter). Churchill: ‘I can answer it. By steady effort, at the cost of great loses and through exceptional victories, the British Army alone conquered these colonies.’ 64

Stalin: ‘And the red Army took Berlin’ (laughter…)

When the Soviet Union showed a clear determination to see to it that the British control of the three former Italian colonies should end, Britain had to remind the USSR that it was the combined British and the Dominion forces that had liberated those territories from Italy. At a time when Britain ‘recognized the interest of the Soviet Union in eastern Europe’ argued the British Foreign Minister, it was surprising to note that Russia did not want to recognise a corresponding British interest in Africa.65 The major stumbling bock in resolving the question of Eritrea and that of the two other Italian colonies before 1947 was, generally speaking, not so much whether or not these colonies should not be independent, but under whose ‘guidance’ they should be independent. Each power was determined to control these strategically important territories in one form or another (under its control or the control of its ally), and to prevent its rivals from establishing themselves there. Even the 1947 deliberation of the Paris Peace Conference gave the impression that these territories were on an auction sale, with so many States bidding for this or that former colony, as a whole, or in part, and some ‘angling for bits and pieces and solid parcels – a country here, a people there, a port, airbase or bit of borderline’.66 Reference was made, now and then, to the wishes and welfare of the natives, but mainly in the form of lip service. ‘Some of the native statesmen were naive enough to think that their future might be decided solely in their own interests. Most were

63

‘Excerpts from Speeches of Churchill and Bevin to House of Commons’, The New York Times, 8 November 1945, p. 4. 64 The Tehran, Yalta and Potsdam Conferences: Documents (Progress Publishers, Moscow, 1969), pp. 225−6. 65 See the transcripts of the American Secretary of State, J. Byrnes describing how these meetings were held, in Speaking Frankly (Harper & Brothers Publishers, New York, 1947), p. 95. 66 D. Clifton, ‘Big Powers in Wrangle over Italy’s Ex-Colonies’, The New York Times, 15 August 1948, section 4, p. E.5.

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THE AUTONOMY OF ERITREA (1952-62): LEARNING FROM THE FAILED EXPERIENCE aware, however, that the fate of their countries had been caught in the strong currents and cross-currents of world politics.’67 When the one year period that was set for the powers to jointly determine the fate of these former Italian colonies had expired and the question came before the UN General Assembly, the game of power politics continued in disguise. If there was an obvious difference in the manner this question was handled when it was in the hands of the major powers (before 1948) and in the United Nations (1948−59), it was basically the disguised way in which power politics was practised by the multitude of actors in the UN − invoking the Charter principles now and then. Be it as it may, the granting of independence to Libya, to Italian Somalia and denying that right to Eritrea was hardly reconcilable with the UN purpose mentioned in Article 1(2), i.e. respect for the principle of equal rights and self-determination. In fact the reason why the Eritrean question was postponed when that of Libya and Italian Somalia was resolved was basically because the interested States did not get the time needed to reconcile their differences, pure and simple – i.e. until they finally rallied behind the proposed federal solution.68 As the political developments that followed revealed, Eritrea’s autonomy and federation ended up satisfying Ethiopia’s desire to extend its territorial domain to the Red Sea69 in return for protecting the economic interests of Italy, the Italian (and other) minorities in Eritrea70 and the military and strategic interests of the United States and the United Kingdom.71 The USSR was strongly opposed to this Federal 67

Ibid. The external interests that were reconciled under the guise of the federal scheme were so complex and intricate that the Ethiopian Government had to warn the General Assembly at one point ‘that the alteration of a single comma (from the proposed federal draft) would cause the whole scheme to collapse’. A/1959, p. 127. 69 See the Ethiopian Order no. 6 of 11 September, which considered Eritrea ‘an integral part’ of Ethiopia; Article 1 of the revised 1955 Ethiopian Constitution, which considers the Ethiopian territorial integrity to include Eritrea; and Order 27 of 1962, which transformed Eritrea into an Ethiopian province. 70 See General Assembly resolution 530(VI) of 1952, entitled ‘Economic and financial provisions relating to Eritrea’ which authorise the protection of the Italian economic and other interests. The contracts, licenses and concessions that were issued to Italians and others involved more than 2,500 construction, mining, agricultural, commercial, industrial and other concessions. See The Eritrean Gazetta, Vol. 14, no. 2, 28 July 1952, and Report of the Government of the United Kingdom . . . Concerning the Administration of Eritrea for the period December 1950-September 1952, UN Doc A/2233, especially p. 19 and Concessions Proclamation No. 132 of 26 July 1952. 71 For the treaties between the United States and Ethiopia assuring the former the continued and expanded use of its military facilities in Eritrea see, for instance, the Technical Cooperation: Assurances under Mutual Security Act of 1951, United States, Treaties and other International Acts Series, 2633; and the other agreements in US Treaty Series 2787 and 2964, in Department of State Bulletin no. 5205 and 5512 respectively. For the promise given by the Government of Ethiopia to the United States to grant such rights to the US provided that Eritrea was placed under its jurisdiction see J. H. Spencer, supra note 15, p. 201 and J. P. Glennon et al. (eds.), Foreign relations of the United States, 1952−4, Africa and Asia Vol. XI, 68

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EYASSU GAYIM scheme from the outset, recognising this outcome. Yet, it had to accept the results gradually since it too had made significant political, economic, strategic and military gains in Eastern Europe. After all, this was part of the post-war international balance of power that had been achieved. As for Eritrea the recommended autonomy and self-government did not give the Eritrean authorities any power to question the validity of the above-mentioned international arrangements. On the contrary, Articles 22(a), 96 and 97 of the Eritrean Constitution made it clear that the Eritrean Government had to respect them. Its task, therefore, was only to facilitate the enjoyment of all those foreign rights and interests. The Federal Resolution had promised to promote the welfare of Eritreans, but the means and resources by which this was to be accomplished was too limited. The autonomy was therefore an illusion, a design that gave one the impression that the interests of Eritreans would be assured when actually this was not what was to be promoted and protected. Thus, once the Government of Emperor Haile Selassie had proved to be a loyal partner in guaranteeing the preservation of external interests, the States whose vital interests were protected (and their allies) saw no reason for reacting against Ethiopia’s interference in ‘the internal affairs of Eritrea’ or in dissolving the federation in 1962. What mattered to these interested States was whether or not the Ethiopian Government would continue to protect their own vital interests. The Ethiopian order that abolished the Federation had made this crystal clear, in Article 4, in the following way: ‘All rights, including the right to own and dispose of real property, exemptions, concessions and privileges of whatsoever nature, heretofore granted, conferred or acquired within Eritrea, whether by law, order, contract or otherwise, whether granted or conferred upon or acquired by Ethiopian or foreign persons whether natural or legal, shall remain in full 72 force and effect.’

It was only after the Ethiopian monarch was overthrown and the Soviet Union managed to establish a client Marxist junta, in 1977, which nationalised all private properties (including the rights granted to the Western States) and invited the Soviet Union to take over the American base in Eritrea, that Western sympathy for the Eritrean struggle for self-determination started to be awaken. Even then it was largely a tacit support. It is, thus, no wonder that even some of the supporters of the federal solution had to confess before the UN General Assembly, in 1950, that the federal solution which they had sponsored was ‘the result of patient effort to Part I (U.S. Government Printing Press, Washington, D.C., 1983), p. 439. For the agreements that were concluded between Ethiopia and the United Kingdom see Exchange of Notes 5−6 September 1952; and 27 September 1952, no. 3, in Great Britain, Foreign Affairs, Treaty Series, no. 62 (1952), Cmd. 8690; Exchange of Notes, 1/3 July 1952, UK Treaty Series, no. 46(1952), Cmd 8642; and Exchange of Notes 11/13 March 1953, UK Treaty Series no, 46 (1953), Cmd. 8899. 72 Order no. 27, Negarit Gazeta, 22nd yr., no. 3, 15 November 1962.

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THE AUTONOMY OF ERITREA (1952-62): LEARNING FROM THE FAILED EXPERIENCE conciliate the just aspirations and claims of the parties concerned’73 or ‘a compromise worked out after a long and careful adjustment of conflicting views’.74 This was also precisely why its critics denounced the autonomy scheme as a mask for annexing Eritrea into Ethiopia75, or as ‘an injustice committed for the sake . . . [of] interested States’.76 A solution that defies the wishes and interests of the people concerned can hardly be satisfactory or practical. This is one of the lessons to be learnt from that unfortunate experience of ‘Eritrean autonomy’ of the 1950s.

73

A/AC.38/SR.38, p. 341. A/AC.38/SR.38, p. 349. 75 See A/AC.38/SR.50, p. 317; A/AC.38/SR.51, p. 326; and A/AC.38/SR.56, p. 369. 76 A/PV.316, p. 540; and also A/PV.315, p. 537. 74

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AUTONOMY IN THE COUNTRIES OF TRANSITION A COMBINED APPROACH TO AUTONOMY: ESTONIAN EXPERIENCE Aleksei Semjonov1 1. LAW ON CULTURAL AUTONOMY OF NATIONAL MINORITY The Estonian Constitution, particularly in the preamble, empowers the Estonians as the core ethnic nation: the Constitution ‘shall guarantee the preservation of the Estonian nation and its culture throughout the ages’. At the same time, the Constitution of Estonia does guarantee certain minority rights. In this regard the most important articles are Article 49 ‘[e]veryone has the right to preserve his or her national identity’; and Article 50 ‘[n]ational minorities have the right, in the interests of national culture, to establish self-governing agencies under condition and pursuant to procedure provided by the National Minorities Cultural Autonomy Act’. The Constitution was adopted in 1992, and the next year the Law on Cultural Autonomy was passed.2 The law set forth a number of specific rights for minority group members, like the right ‘to practice their own cultural and educational institutions and religious congregations’, the right to publish minority language publications, and the right to use their language in accordance with state language regulations.3 In order to enjoy these rights, however, members of national minorities have to elect autonomous cultural affairs councils that would be responsible for representing their interests and running minority cultural institutions. The councils would be formed through nation-wide elections based on voluntary lists (national register) of minority group members to be composed by the minorities themselves.4 The national register contains the following information regarding a person: given name and surname; date and place of birth; sex; ethnicity and mother tongue; personal code; marital status; data on children who are minors; place of residence; religious affiliation; signature of the applicant and date.5 The National Minorities Cultural Autonomy Act grants the right to form institutions for self-governance to all those minorities to which this right was given 1

Director of the Legal Information Centre for Human Rights, Tallinn, Estonia. Law on Cultural Autonomy of National Minority, Riigi Teataja (RT) I 1993, 71. 3 Ibid., Article 4. 4 Ibid., Article 7. 5 Ibid., Article 8. 2

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ALEKSEI SEMJONOV by the law of 1925, that is to Germans, Russians, Swedes and Jews. Other minorities also are eligible to set up a cultural autonomy body but only if the number of officially enlisted persons is over 3000 people.6 Thus, there are two opposed problems for different types of minorities. On the one hand, very few minority groups actually answer this arbitrarily imposed numerical criterion: apart from Russians, these are, strictly speaking, only Ukrainians, Byelorussians, Finns and Tartars. Further, for a small minority group the preparation of a demanded list can be a huge undertaking as every person who may belong to a given minority must be found and persuaded to added his or her signature. This is not a simple task when members of the group are dispersed throughout the country. For the very big Russian minority, on the other hand, there is no problem to present a list of several thousand members. However, the list of accidentally selected persons hardly can be legitimate in terms of self-governing; but then to achieve a valid representation Russians should present a list consisting of a considerable number of signatures – an extremely expensive task comparable with national census. The law defines the principal objectives of cultural self-government as the following: • the establishment of special bodies to organise instruction in the mother tongue and to supervise allocation of the assets assigned for that purpose • the establishment of cultural institutions of national minorities, as well as the organisation of minorities’ cultural events • the establishment of foundations, grants and prizes for the promotion of culture and education of national minorities, and awarding the said grants and prizes.7 As of 2002, almost ten years after the law’s adoption, no autonomous cultural bodies have been set up, and, in fact, no minority cultural organisation has even tried to realise the procedure. This indicates that something is seriously wrong with the law itself. One of the most important failures is certainly the definition of minorities presented in the law. The legislator set out the following characteristics of national minorities: • they are citizens of Estonia; • they reside in the territory of Estonia; • they have time-honoured, stable and strong links with Estonia; • they differ from Estonians by their ethnic affiliation, cultural peculiarities, by religion or language; • they are guided by the desire to preserve, by joint efforts, their cultural traditions, religion and language, underlying their common identity.8 Thus again, following the favourite principle of Estonian officials, it includes only citizens of Estonia. Non-citizens (and citizens of other states, that is almost 60 per 6

Ibid., Article 2(2). Ibid., Article 5. 8 Ibid., Article 1. 7

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A COMBINED APPROACH TO AUTONOMY: ESTONIAN EXPERIENCE cent of minority members) are allowed to take part in activities, but are restricted from being elected to the councils or governing bodies.9 Paradoxically, they cannot even vote for the election of cultural councils, thus having fewer rights than permanent residents of Estonia who can participate in local elections! As a result, for minority leaders, including those most loyal toward official policy in Estonia, using such approach, which would create artificial dividing lines among the members of their community, was not acceptable. Another serious flaw in the law has been the evident nebulousness in terms of who is a subject of the law. Sometimes the text refers to a ‘person belonging to a national minority’. In other provisions, it is a question of cultural bodies. In Article 12 the law refers to the ‘cultural councils’ to be elected; while in Article 24 it is said that institutions of cultural autonomy should be educational institutions, ethnic cultural institutions, enterprises, etc., and that the provisions of appropriate laws should govern these institutions, i.e. the law on private schools, the law on privatisation, regulations for private enterprises, or public organisations, and so on. With all these qualifications, it is unclear, what then shall be the role of the elected councils? What is clear is that the law by no means affords an opportunity for selfgovernance as the cultural councils have only the right to request financial help from official and public foundations and organisations. Yet, all existing NGOs can already do the same, thus to create a superfluous body through a rather onerous and expensive bureaucratic procedure only to be able to do more or less the same things seems apparently senseless for most minority societies. These shortcomings represent a sharp contrast with the pre-World-War II law on the cultural self-government in Estonia (1925), which Asbjörn Eide presented in detail in his contribution to this seminar.10 He correctly mentioned that that law deservedly has been hailed in international literature as a particularly elaborate and constructive example of cultural autonomy. Thoroughgoing analysis, however, shows that despite some official assertions the National Minorities Cultural Autonomy Act of 1993 did not restore the similar Law of 1925; this law was renewed, while its most substantial provisions were abolished. Primarily, it is a question of competence. As Eide has noted, provisionally, cultural autonomy should be understood as the right to self-rule, by a culturally defined group, concerning matters, which affect the maintenance and reproduction of its culture. In order to do that, the law of 1925 foresaw a number of responsibilities for cultural self-government, such as organization, administration, and supervision of public and private schools in the mother tongue; right to pass educational and cultural by-laws, which had binding force upon the members of the group; adopt the budget and impose taxes upon minority members, etc. Neither of these characteristics of self-rule remained in the National Minorities Cultural Autonomy Act of 1993. 9

Ibid., Article 6. See also ‘Cultural autonomy and territorial democracy: A recipe for harmonious group accommodation?’ Prepared by Asbjørn Eide, Chairperson-Rapporteur of the Working Group on Minorities. (E/CN.4/Sub.2/AC.5/2001/WP.4 10

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ALEKSEI SEMJONOV Moreover, the right to self-management, insists Eide, must extend beyond the right or freedom of association. It implies that the state cannot overrule or invalidate the decisions made by the institutions of the cultural group, unless they violate national law. By recognizing cultural autonomy for a given group, the state undertakes not to impose its own regulations in the field covered by cultural autonomy; it is a question of a responsibility for the internal management by that group. Nevertheless, as we can see, the law of 1993 includes a number of references to other legal acts and regulations, which in practice nullify the role of autonomous bodies. Further, the right to self-rule inevitably turns out to be a fiction if it is not founded on a strong and independent financial basis. Even if the central government is not ready to concede a right for culturally autonomous bodies to impose their own taxes upon the members of the groups, there still must be (ideally) a precise and distinct system of subsidies, expenditures and obligations for all sides involved: the Estonian Government, local governments and culturally autonomous institutions. When financial support is based on accidental decisions, disposable support to individual requests – then such project-based financing means that the funding is obviously non-permanent, the applicant cannot be certain that he could obtain the requested amount of support, and these circumstances by no means could guarantee the sustainability and effective functioning of culturally autonomous institutions. Thus, the failure of the National Minorities Cultural Autonomy Act of 1993 was highly predictable from the very beginning, and, not surprisingly, no autonomous bodies have been established in Estonia since the law was passed. 2. COMPOSITE ELEMENTS OF MINORITY RIGHTS’ IMPLEMENTATION The situation shows not so much a lack of initiative or enthusiasm on the part of minority leaders as it simply reflects the fact that there are other opportunities to reach the objectives expressed in the law on cultural autonomy and Estonian legislation, in principle, presents no direct limitation as to that. 2.1. Education Actually, the issue of minority language education in Estonia is related primarily and for the most part to the issue of Russian language. Education throughout the State-run system is provided in Estonian and Russian, which is certainly a legacy of the Soviet period. The opportunity exists to receive education in Russian from kindergarten through secondary school.11 Russian-language tuition is also available in vocational schools and at private universities.12 Unfortunately, State-funded 11

Report of the Government of Estonia ‘Integrating Estonia 1997-2000’, Tallinn, June 2000, p.22. Can be found: http://www.meis.ee/eng/index.htm. 12 See Report submitted by Estonia on Implementation of the Framework Convention for the Protection of National Minorities, December 1999, Can be found:

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A COMBINED APPROACH TO AUTONOMY: ESTONIAN EXPERIENCE higher education in Russian has been almost completely abolished in recent years. In past, there were Russian groups in all major state universities and high schools. Starting a school where instruction is in a minority language other then Russian is also possible if there is sufficient demand, i.e. an optimal number of pupils. For instance, the Jewish Gymnasium was opened in Tallinn in 1990 and continues to exist. However, there has been little interest to do this by other minority groups, mainly due to the insufficient number of pupils to open even a class. The option was once used by Byelorussians and Ukrainians, but there was not enough interest on the parents’ side to develop the idea further and the initiatives died out in a couple of years, one of the reasons being that different ethnic communities are dispersed throughout the country. For the same reason, it has been difficult to create Sunday schools and other forms of study. Since the State still provides for the Russianlanguage education, the availability of private education is not currently considered an important issue. 2.2. Culture: Support for Minority Cultural Organisations and Activities In 2001 the Integration Foundation published an overview of the cultural societies in Estonia. There are currently about 160 national cultural societies and art collectives and most of them have joined under four unions and associations of national cultural societies: the International Union of Associations of National Cultural Societies ‘Lüüra’ (28 societies and five art collectives); the Estonian Union of Nationalities (22 societies), the Union of Slavic Educational and Charity Associations in Estonia (46 societies and 20 collectives); the umbrella organisation of national cultural societies in Ida-Viru county, the Roundtable of Ida-Viru County National Cultural Societies (22 societies). These associations are the chief actors in the promotion of educational and cultural life of national and ethnic minorities. Since the regaining of independence, Estonia has supported the activities of cultural societies of different minorities. Cultural societies of ethnic minorities have been supported through the Ministry of Culture since 1991. Later, various other sources of financing have been added – funds, foreign aid projects, and others. In 2000 the sub-programme of the State Integration Programme ‘Education and culture of ethnic minorities’ was given 3,4 million Estonian kroons, in 2001 the funding increased to 4,2 million Estonian kroons. In addition to the funds of the State Integration Programme, local governments have added their support to cultural and educational activities of ethnic minorities. For example, the Tallinn city government allocated 5 million Estonian kroons (over USD 320,000) in 2000 to support cultural societies of ethnic minorities. In 1999−2000, the Ministry of Culture and the

http://www.humanrights.coe.int/minorities/Eng/FrameworkConvention/StateReports/1999/est onia/estonian.htm.

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ALEKSEI SEMJONOV Integration Foundation have supported more than 400 projects of ethnic minority organisations.13 In the period 1996−2000, the Estonian Ministry of Culture allocated approximately 7,650,000 Estonian kroons (ca USD 426,000) in support of the cultural activities of minority organizations.14 This support is more or less permanent, although by no means regular (systematic): a good deal of allocations were directed to one-off events. In addition, the pattern of support for the projects of minority cultural organisations does not reflect the proportion of different minority groups in Estonia; governmental funding for the cultural activities of the Russian minority hardly is sufficient – approximately 46 per cent, while the Russians constitute more than 80 per cent among minority members.15 All these shortages notwithstanding, the existing situation provides for minority societies, in fact, no less opportunities than the law on cultural autonomy envisages. 3. LINGUISTIC REGULATIONS (OFFICIAL USAGE OF RUSSIAN) The Estonian Constitution guarantees national minorities the right to receive responses from officials in their mother tongue and the right to use their mother tongue in an official capacity in those localities in which at least 50 per cent of the permanent residents belong to a national minority (Article 51). Thus, the Constitution provides the right to receive responses from officials in one’s mother tongue only in the regions where above 50 per cent of all citizens are non-Estonians. For all practical circumstances, this may be only Russian. However, the Law on Language extends this right to all permanent residents of Estonia. The Constitution also provides that in localities where the language of the majority of the residents is not Estonian, local governments may, to the extent and pursuant to procedure provided by law, use the language of the majority of the permanent residents of the locality as an internal working language (Article 52). As suggested, the conditions for implementation of the constitutional principle are defined by additional legislation. The Law on Language provides that ‘in local governments where the majority of permanent residents are nonEstonian speakers, the language of the national minority constituting the majority of the permanent residents of the local government may be used alongside Estonian as the internal working language of the local

13

See Report on the Implementation of the International Convention on the Elimination of All Forms of Racial Discrimination submitted by Estonia, 2002 (p. 81). Can be found: http://www.vm.ee. 14 These figures are based on the presentation Integration: Where do we stand by Minister of Population Affairs Katrin Saks at the ECMI Baltic Seminar 2000 in TØnder, Denmark 7−10 December 2000. 15 Based on the presentation by MP Mihhail Stalnuhhin on the international seminar Nondiscrimination, minority rights and integration in Estonian society, Tallinn, Estonia, 11−12 January 2001

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A COMBINED APPROACH TO AUTONOMY: ESTONIAN EXPERIENCE government on the proposal of the corresponding local self-government council and by a decision of the Government of the Republic’.16

The Law on Local Self-government provides that ‘in local governments, where the Estonian language is not the language of the majority of permanent residents, the minutes of local self-government sessions can be kept in the language of the majority of the permanent residents . . . but a translation in the Estonian language should be [provided]’.17 Certainly, the deficiencies of these provisions are striking. The numerical threshold for the right to receive replies from a state or local officials, or to use a minority language as an internal working language – i.e. the requirement for minority to be a local majority – is apparently too high. Additionally, the laws make the realisation of these provisions rather difficult. The usage of Estonian is worded as a basic right; while minority languages (i.e. Russian) ‘may be used’ in particular circumstances (but may also not be), upon a special request by the local government and as approved by the State government, and only in units where the majority of permanent residents belong to a minority group. Moreover, after recent amendments to Article 8 of the Language Act (passed on 17.01.2002) the given situation tends to worsen substantially, as there is no obligation for officials to speak non-Estonian languages (in practice Russian) in interactions with minority members. According to this law, in oral communications with servants or employees of State agencies and local governments, and in a notary’s office, bailiff’s office or certified interpreter or translator’s office, by agreement of the parties, a foreign language, which the servants or employees understand, may be used. If no agreement is reached, communication shall take place through an interpreter and the costs shall be borne by the person who is not proficient in Estonian. At the same time, one fortunately has to note that de facto the use of the Russian language in contacts with administrative authorities is widely accepted in a number of areas inhabited by a substantial number of persons belonging to national minorities (i.e. less than 50 per cent). There is also a tendency not to give in this context much weight to the restrictive definition of the term national minority mentioned above and that, in addition to local government, such administrative authorities as the Office of the Legal Chancellor accept correspondence in a minority language. 4. CONCLUDING REMARKS The Estonian National Minorities Cultural Autonomy Act as a mechanism to protect ethnic and linguistic minority members has proved to be insufficient and is not suited for the present situation, primarily due to its apparent flaws and inconsistencies. The revision of the law, in order to make it more effective, for 16

Law on Language, Article 11. RT I 1995, 23. The Law on Local Self-government, section 8 of Article 23. RT I 1993, 37, 558, consolidated text RT I 1999, 82, 755. 17

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ALEKSEI SEMJONOV example by bringing it nearer to the law on cultural autonomy of 1925, however, hardly could be recommended. There are several reasons for that. The main objectives of cultural autonomy are to allow the minorities to establish cultural and educational institutions for the preservation and protection of their identity. However, existing cultural societies in Estonia already can do so to a sufficient extent, and thus supplementary institution like bodies stemming from cultural autonomy appear rather superfluous. Generally, the current Estonian legal system, in spite of insisted attempts to insert into it certain provisions containing ethnic priorities, for the most part is based on liberal democratic principles and ideas. Thus, this legislation generally is more in congruence – and is more compatible – with modern international mechanisms of the protection of persons belonging to minorities, such as the Framework Convention on the Protection of National Minorities, or the UN Declaration on the Right of Persons, belonging to National or Ethnic, Religious and Linguistic Minorities. Estonian officials recognise this and have undertaken efforts to fulfil Estonia’s obligations with regard to these instruments and to implement certain recommendations and suggestions made by different international bodies. A review of the current legislative framework should be carried out with a view to strengthening and expanding such practices. Perhaps a general approach to legal amendments based on individual human rights may prove to be more effective in the Estonian context than special legislation, which is founded on the principle of group rights’ protection.

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AUTONOMY OF GAGAUZIA: A POST-SOVIET EXPERIENCE Priit Järve1 1. INTRODUCTION2 Autonomy as a concept is open to different interpretations. In practice, autonomy has also taken various forms depending on the conditions in a given country, its history, etc. (Lapidoth, 1997). One set of such conditions emerged by the end of the 1980s in Moldova where the Gagauz live. The Gagauz are a small Turkic (Gagauz) speaking Orthodox Christian people, settled in what is now the southern part of the Republic of Moldova, a territory of 1.85 thousand square km (5.5 per cent of the territory of Moldova). In 2000, there were 161.1 thousand inhabitants in Gagauzia, of which over 81.4 per cent were ethnic Gagauz (3.8 per cent of the country’s total population).3 Most (92 per cent) consider Gagauz as their native language, but 73 per cent also use Russian as a second language. Only four per cent, however, speak Moldovan (Romanian). With no kin state, the Gagauz started to claim autonomy in 1989, but the moves to establish a separate administration were suppressed by the Government of Soviet Moldova. However, the confrontation only deepened after the Republic of Moldova declared its independence on 27August 1991. There are two interrelated contexts vital for understanding the ethnopolitical conflict and its settlement in Gagauzia. The broader context was an upsurge of nationalism in the so-called national republics of the Soviet Union before and after its dissolution, which did not leave Moldova untouched. The specific context was provided by an armed conflict between the central government of Moldova and its breakaway region of Transdniestria, which introduced a more constructive approach into the Government’s policy towards its ethnic minorities and ethno-political conflicts. In 1989, the Popular Front of Moldova started demanding that the Moldovan language (practically the same as Romanian) be constituted as the only state 1

European Centre for Minority Issues, Flensburg, Germany. This article makes use of the results of research done by the author in the framework of the Carnegie Project on Complex Power-Sharing and Self-Determination which is carried out jointly by the University of Cambridge and the European Centre for Minority Issues (<www.ecmi.de/cps/>). The present author in indebted to the Carnegie Corporation of New York and to the leaders of this project for the support of his research. 3 According to the data of the Gagauz local administration, in 2000, 81.4 per cent of the population of Gagauzia were Gagauzians, 5.2 per cent were Bulgarians, 4.6 per cent were Russians, 4.4 per cent were Moldovans, 3.3 per cent were Ukrainians, and others – 1.1 per cent. Source: Regional development programme ‘Gagauz-Eri’. Chisinau – Comrat, 2001, p. 20. 2

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PRIIT JÄRVE language of Moldova. At that time similar demands were voiced in all republics of the USSR by the respective popular fronts. Estonia had been the first to adopt a law on its state language in January 1989 (Grin 1991). Moldova followed suit on 31 August 1989. However, the Popular Front of Moldova was not only anti-Moscow and anti-Russian, but also pro-Romanian, openly advocating Moldova’s merger with its neighbour.4 The non-Moldovan nationalities, which comprised more than one third of the country’s population, including the Gagauz, perceived this language policy as a threat to their cultural and political status quo. 5 As a result, the non-Moldovans joint forces and started to pursue separatist policies. The two regions in Moldova with high concentrations of non-Moldovans – Transdniestria in the east, on the left bank of the Dniester river, and Gagauzia in the South of the country – opposed the policies of the Popular Front and demanded territorial autonomy. These claims heralded two interrelated sequences of events, which have had a major impact on the development of Moldova ever since, turning it into an area of lingering ethnopolitical conflict of major international concern. According to the assessment of the OSCE, shared by many experts, the language issue was at the very origin of the conflict in Moldova.6 Equally, in Transdniestria, the language legislation of 1989 is widely regarded as the cause of the subsequent political troubles and the armed conflict. Long before the declaration of independence and months before the possibility of unification with Romania was publicly discussed, the language legislation became the clear signal for a process of emancipation from the Soviet legacy. On 30 August 1989, the Constitution of the Moldavian SSR was amended by Article 70, which introduced Moldovan as ‘the state language’, written in the Latin alphabet. Russian was described as the interethnic ‘language of communication’, and the language of the Gagauz population was to be protected and developed. On the following day, the ‘Law on the Use of Languages on the Territory of the Moldavian SSR’ was passed, stating that Russian would be used throughout Moldova on the same footing as Romanian, and that Romanian, Gagauz and Russian would be the ‘official languages’ in areas with a predominantly Gagauz population. 4

Several years later the Popular Front of Moldova was characterised in the following way: ‘The Popular Front of Moldova (PFM), a political force associated with dramatic changes in the society, focused on ethnic problems. It promoted attention to these specific problems without contributing to the consolidation of the society. The achievement of a political goal in that period was associated, as a rule, with the notion ‘defeat your enemy’. Any hint of the need for dialogue or reasonable compromise was interpreted as treason and rejected from the start’. National Human Development Report. Republic of Moldova 2000. UNDP, Chisinau, p. 29. 5 According to the census of 1989, Moldovans (Romanians) made up 64.5 per cent of the population of Moldova, followed by Ukrainians (13.8 per cent), Russians (13.0 per cent), Gagauz (3.5 per cent), Bulgarians (2.0 per cent), Belarussians (0.5 per cent), Roma (Gypsies) (0.3 per cent), Germans (0.2 per cent), Poles (0.1 per cent) and others. 6 See Transdniestrian conflict: origins and issues, Background information paper issued by the OSCE Conflict Prevention Centre, 10 June 1994, <www.osce.org/Moldovadocuments/ files/background.pdf>.

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AUTONOMY OF GAGAUZIA: A POST-SOVIET EXPERIENCE The use of various minority languages (such as Ukrainian, Bulgarian, Yiddish) was also guaranteed. Article 7 of the law prescribes that persons holding positions in state administration and public organisations, which bring them into contact with citizens (public health, education, culture, mass media, transport, trade, services, etc.) must know Romanian, Russian, and, in areas with a Gagauz population, also Gagauz at a ‘level necessary for fulfilling their professional obligations’. Article 7, although seemingly balanced, had an asymmetric impact, since practically all Romanian speakers knew Russian, but not all Russophones were able to speak Romanian. Therefore, this article was perceived as an existential threat to their culture by Russian speakers on both sides of the Dniester river. By early 1992, Chisinau had practically lost its sovereignty over the territories of Transdniestria and Gagauzia. In March 1992, an armed conflict in Transdniestria broke out, when the Dniester National Guard attacked a Moldovan police station in the town of Dubossary. The Moldovan President ordered counter attacks against the Transdniestrian separatists. Fighting spread quickly and escalated in intensity. After weeks of fighting and many hundreds of casualties, the Russian 14th Army, which had remained stationed in Moldova from the Soviet period and had been officially neutral, intervened and stopped the armed conflict. In July 1992, the Presidents of Moldova and Russia signed a cease-fire agreement in Moscow. The same month, a peacekeeping contingent of the Russian Federation was stationed along the Dniester valley, on both sides of the river. After the cease-fire with Transdniestria the Government of Moldova tried to find a solution for the conflict with Gagauzia. The negotiations in a special Parliamentarian Commission with the participation of the representatives of Gagauzia were initiated in 1993, but the then Parliament was not able to decide on the status of Gagauzia as drafted and proposed by the Commission. After a new Parliament was elected in 1994, the work resumed. On 1 April 1994, another special Parliamentary Commission with the participation of the Gagauzes was formed, which worked several months on the draft law on the special status of Gagauzia, using inputs from the Council of Europe and the CSCE. In July, the Moldovan Parliament adopted the draft law in the first reading and on 23 December 1994, after being amended following the recommendations of international experts, ‘Law on the special legal status of Gagauzia (Gagauz Yeri)’ was adopted in the second reading. Finally, Gagauz autonomy had been formally created. In 1996, Moldova ratified the Framework Convention for the Protection of National Minorities of the Council of Europe. The Report submitted by Moldova pursuant to Article 25 paragraph 1 of this Convention7 presents a positive evaluation of the settlement in Gagauzia by the Moldovan Government. In 1997, one high Gagauz official characterised the agreement on Gagauz autonomy as a breakthrough

7

See the text of this Report at <www.humanrights.coe.int/minorities/Eng/FrameworkConvention/StateReports/2000/moldova/moldovan.html>.

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PRIIT JÄRVE in the domestic affairs of Moldova, and as ‘an act of wisdom of the peoples of Moldova and Gagauzia’ (Järve, 1998:21). So far, the autonomy arrangement for Gagauzia is the only case in CentralEastern Europe and the former Soviet Union that a territorial autonomy has been established for an ethnic group. 2. WAY TO AUTONOMY At the initial stage of the conflict, which led to the establishment of the Gagauz autonomy, mass movements such as the Popular Front of Moldova and the movement of Gagauz People played a very important role in mobilising people on a large scale, creating paramilitary units, shaping the general political atmosphere and legitimising the leaders of these movements. At a later stage, the opposition of these movements was transformed into an elite-led debate over the conception, articulation and enforcement of Gagauz autonomy. These protagonists, movements and elites alike, were, in fact, the agents as well as the results of the disintegration of the Soviet Union. Both sides were represented by individuals who were able and willing to become or stay politically active under Gorbachev’s policy of perestroika and glasnost. The Gagauzian side included mostly ethnic Gagauz whose everyday language tended to be Russian. Many had held high positions in local Soviet and communist party organizations. People with similar Soviet political experience and affiliations took over the leading positions on the Moldovan side, though, in contrast to the Gagauzians, they knew Moldovan. Moldova was one of the cases, which showed how the communist cadre policy of promoting the representatives of titular ethnic groups and/or nations (policy of korenizatsiya, or ‘indigenization’), had grave unintended consequences for the Soviet Union when it found itself in a deepening crisis by the end of the 1980s.8 As long as the Soviet system was able to deliver economically, the ethnic communist leaders were contributing to the functioning of this system, which can be seen as a sort of power sharing arrangement between Moscow and the so-called national republics. However, in the serious crisis of 1991 they were able to switch to an ethnic alternative and replace ‘soviet values’ with particular local interests. The existence of this ethnic alternative largely explains not only the stunningly swift and almost non-violent disintegration of the Soviet Union but also the subsequent emergence of ethnopolitical conflicts on its former territory. Over time, the personal composition of the opposing groups has changed, not without intra-elite competition, and moderate politicians have been included (Crowther, 1998). The conflict between Chisinau and Gagauzia transformed into a political and economic debate within and over the legal framework provided by the law of 23 December 1994 on the legal status of Gagauzia. Chinn and Roper date the beginning of the journey towards autonomy to the early 1980s, when a small number of Gagauz intellectuals created a cultural club to discuss how to preserve the language and culture of their people. During these years, 8

On the initial stage of korenizatsiya policy in Moldova see King (1998).

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AUTONOMY OF GAGAUZIA: A POST-SOVIET EXPERIENCE the Soviet authorities prosecuted such activities (Chinn and Roper, 1991: 91). The political atmosphere changed under Gorbachev’s perestroika policy and in May 1988 the first Gagauz nationalist movement, the Gagauz Khalki (Gagauz People) was founded. In the beginning, it supported the Popular Front of Moldova but went into opposition after the adoption of the language law in August 1989. The Gagauz felt threatened by this legislation and the ensuing politics of ‘Romanisation’ and ‘deRussification’ pursued by the Moldovan authorities. In this situation the Gagauz leadership sought closer relationships with prosoviet forces. On 12 November 1989 delegates and local Gagauz assembled in Comrat to proclaim a ‘Gagauz Autonomous Soviet Socialist Republic within Moldova’. The Moldovan Supreme Soviet immediately invalidated this proclamation. As during the initial months of 1990 Chisinau provided little economic or cultural aid to the Gagauz populated regions, Gagauz delegates and officials assembled in Comrat once again and on 22 June 1990 declared the creation of the Gagauz ASSR within Moldova. Again no substantial practical moves were immediately initiated to validate this claim (Thomson 1997: 91-2). On 19 August 1990, the Gagauz leadership proclaimed a ‘Gagauz Soviet Socialist Republic’, which would be independent from Moldova, but part of the Soviet Union. Immediately, the Gagauz leadership decided to hold elections for the Supreme Soviet of the self-proclaimed republic on 28 October 1990. In turn, on 26 October 1990, the Supreme Soviet of Moldova decreed an emergency situation in the southern part of Moldova (where the Gagauz live). To block the elections, the Moldovan government mobilised approximately 40,000 armed volunteers and moved them to the South. The Gagauz in response organized their own voluntary paramilitary units. Another column of volunteers arrived from Transdniestria, through the territory of the Ukraine, to support Gagauzia. Fortunately, this dangerous confrontation between Gagauz and Transdniestrian forces on the one side and the Moldovan volunteers on the other did not develop into an armed conflict. The Gagauz leaders appealed to Moscow to send forces to the region. Moldovan police and Soviet Interior Ministry troops managed to stop the volunteers, which prevented bloodshed. At the negotiations in which the Commander of the Soviet interior forces participated, an agreement was reached to withdraw the Moldovan and Gagauzian volunteers. Shortly after that Moldova dissolved its voluntary units. These developments, however, alienated the Gagauz even further from the Moldovans. The central authorities virtually lost control over the Gagauz area around Comrat and a small number of Moldovan policemen were killed in 1991 and 1992 during Gagauz attacks on Moldovan police stations. It was only in autumn 1992, after the armed conflict in Transdniestria was over, that political negotiations on an autonomy status for Gagauzia were initiated (Neukirch). Until then, declarations and decisions made by the Gagauz in 1989 – 1991 had been systematically overruled, or banned by the Moldovan Supreme Soviet. The latter’s proposal to create a special Gagauz county in 1991 was, in turn, rejected by

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PRIIT JÄRVE the Gagauz as this would have deprived them of the right to make decisions on political matters and legislative issues. The situation changed after Moldova suffered the shock of an armed conflict with Transdniestria in 1992. In 1993 the Moldovan parliament discussed several draft laws on a special status for Gagauzia. However, the pro-Romanian members of the parliament rejected these drafts as too liberal. Only after a new and less proRomanian parliament was elected in 1994, a more constructive discussion of Gagauz autonomy started which led to the adoption of the law on a special status of Gagauzia on 23 December 1994 by the Moldovan parliament. In the Southern territories of Moldova where the Gagauz proclaimed and set up their own administrative institutions the tension had reached its peak already in 1990. Nevertheless, the chances of resolving the conflict in Gagauzia by peaceful means were higher than in the case of Transdniestria, since armed clashes occurred only occasionally and did not escalate. Subsequently, the death toll remained very low. In February 1994, the pro-Romanian Popular Front suffered a major defeat at the parliamentary elections. In March 1994 at a consultative referendum, over 90 per cent of the population voted in favour of an independent Moldova. It meant that the voters were against a union with Romania. The newly formed coalition government, consisting of anti-unionist forces, was much more receptive towards concerns of the two breakaway republics than the previous one. It was also keen on resolving at least one of the ongoing disputes as soon as possible. A new Constitution of the Republic of Moldova was adopted in July 1994; Article 111 provided for the possibility of autonomy for the two regions of Moldova without naming them. On 23 December 1994 the Parliament of Moldova adopted an organic ‘Law on the special legal status of Gagauzia (Gagauz Yeri)’, which constituted Gagauzia as an autonomous territorial unit, granting the Gagauz people a form of selfdetermination within Moldova.9 On 14 May 1998 the Gagauz People’s Assembly passed a basic law for Gagauzia, which was originally proclaimed in the 1994 special status law. This Code of Gagauzia (Gagauz Yerin Temel Kanonu in Gagauz, Regulamentul Gagauz Yeri in Moldovan) specifies the rules laid down in the 1994 Moldovan law on the special legal status of Gagauzia. 3. THE AUTONOMY ARRANGEMENT The autonomy arrangement in Gagauzia is based on the Moldovan Constitution, Article 111 of which stipulates the possibility of territories with a special status in the country.10 An explicit and detailed arrangement of the autonomy of Gagauzia is

9 In the legislative system of Moldova the organic law occupies a status between the Constitution and the ordinary laws. The 1994 law on the special status of Gagauzia is the most important legal document, which defines, although in part ambiguously, the power sharing between the central government of Moldova and the autonomous region. 10 Article 111 ‘special Autonomy Statutes’ of the Moldovan Constitution reads:

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AUTONOMY OF GAGAUZIA: A POST-SOVIET EXPERIENCE laid down in the organic ‘Law on the special legal status of Gagauzia (Gagauz Yeri)’, which can be amended only by 3/5 majority of the Moldovan parliament. The preamble of the law says that the law is adopted ‘with the aim of satisfying the national needs and preserving the national identity of the Gagauzes, bringing about their full and comprehensive development, fostering their language and national culture, and assuring their political and economic self-reliance’.11 It also confirms ‘the equality of rights of all citizens who live on the territory of the autonomous territorial unit, which is being created without regard to nationality or other distinctions’.12 Article 1 of the organic law stipulates: (1) Gagauzia (Gagauz-Yeri) is an autonomous unit, with a special status as a form of self-determination of the Gagauzes, which constitutes an integral part of the Republic of Moldova. (2) Gagauzia shall, within the limits of its competence, resolve by itself questions of political, economic and cultural development in the interests of all its population. (3) All rights and liberties defined in the Constitution and legislation of the Republic of Moldova shall be guaranteed on the territory of Gagauzia. (4) In the case of a change of the status of the Republic of Moldova as an independent state, the people of Gagauzia shall have the right of external self-determination. A change of the status of Moldova as an independent state refers to Moldova’s unification with Romania, one of the main aims of the Popular Front, an idea, which is still alive.13 For the Gagauz, who were and remain against such a merger, it was important to have the right for external self-determination reserved if this unwanted development did occur. The radical elements on the Moldovan side, particularly the Popular Front, have always objected to this right of the Gagauz. By its Constitution, the Republic of Moldova is still a unitary state, because Article 111 of the Constitution stipulates only the possibility of a special status for certain regions on the left bank of the Dniester river and in the south of the country. The Gagauz autonomy is not explicitly mentioned in the Constitution since it was (1) The places on the left bank of the Nistru river, as well as certain other places in the South of the Republic of Moldova may be granted special forms of autonomy according to special statutory provisions of organic law. (2) The organic laws establishing special statutes for the places mentioned under paragraph (1) above may be amended if three fifths of the Parliament members support such amendments. 11 References to the text of his law follow the office translation by the OSCE Mission to Moldova. 12 The term ‘nationality’ in the Eastern European context in general and in the post-soviet context in particular means ‘ethnic origin’, not ‘citizenship’ as common in the West. 13 N. Prihodko, ‘Moldavany ili rumyny? Za desyat’ let nezavisimosti process natsional’noi samoidentifikacii ne zavershilsya’. Nezavisimaya gazeta, 24 August 2001.

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PRIIT JÄRVE adopted before the special status was created for Gagauzia. The lack of subsequent amendments remains a source of serious concern for the Gagauz. Vertically, the Republic of Moldova has three levels of Government: the state level (the capital Chisinau), the county level (since 1998, nine counties, Chisinau municipality, Gagauzia and Transdniestria), and the local level.14 Starting from 1995, when the law on their special status entered into force, the Gagauz region constituted itself as ‘an autonomous territorial unit’, which is supposed to be standing above the counties, comparable with the municipality of Chisinau, the capital city. According to Article 6 of the Law on the special legal status of Gagauzia: (1) Gagauzia shall include localities in which Gagauzes constitute over fifty percent of population. (2) Localities in which Gagauzes constitute less than fifty percent of the population may be included in Gagauzia on the basis of the freely expressed will of a majority of the electorate revealed during a local referendum conducted on the initiative of no less than one-third of the electorate of the corresponding locality. (3) Localities referred to in parts (1) and (2) of the present Article shall be included in Gagauzia on the basis of the result of the local referendum conducted by the Government of the Republic of Moldova in each community. (4) Localities included in Gagauzia shall reserve the right to secede from Gagauzia as a result of a local referendum conducted at the initiative of at least one-third of the electorate, but not before one year after the date it was included in Gagauzia.15 According to Article 7 of the Law on the special legal status of Gagauzia, ‘the representative authority of Gagauzia shall be the People’s Assembly (Halk Toplushu), which shall have the power, within the limits of its competence, to enact laws’. It is elected every four years by universal, equal, direct secret and free vote on the principle of one deputy per each 5000 voters with at least one deputy from each locality, which belongs to Gagauzia. According to Article 11, the People’s Assembly shall adopt, within the limits of its competence, local laws by a majority of votes of the elected deputies. Article 12 explains that this competence includes the fields of: (a) science, culture, education; (b) housing management and urban planning; (c) health services, physical culture and sports; (d) local budget, financial and taxation activities; 14 On 27 December 2001, the Parliament of Moldova adopted a new law on administrativeterritorial structure of the country, abolishing the nine counties according to the law of 1998 and restoring 32 rayons of the Soviet period. 15 Article 8(6) of the Code of Gagauzia restricts this right of secession only to those localities where the Gagauzes constitute less than fifty per cent.

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AUTONOMY OF GAGAUZIA: A POST-SOVIET EXPERIENCE (e) economy and ecology; (f) labour relations and social security. Further, Article 11 stipulates that the competence of the People’s Assembly shall also include: (a) solution in a legal manner of questions of the territorial organisation of Gagauzia, the establishment and alteration of the categories of localities, the borders of the regions, towns and villages, and their naming; (b) participation in the implementation of internal and external policy of the Republic of Moldova connected with the interests of Gagauzia; (c) defining the structure of the organisation and activity of local public administrative authorities of Gagauzia and of citizens’ associations, with the exception of parties and other voluntary political organisations; (d) setting, organising and conducting elections of deputies for the People’s Assembly and approving the composition of the Central Election Committee for carrying out the elections; setting elections for local public administrative authorities of Gagauzia; (e) conducting local referendums concerning questions that are within the competence of Gagauzia; (f) adopting of regulations and symbols of Gagauzia; (g) creation of titles of honour and institution of decorations; (h) examining of the question and initiation of a proposal to the Parliament of the Republic of Moldova concerning the declaration of a state of emergency on the territory of Gagauzia and the introduction under such circumstances of a special form of administration in order to ensure the protection and security of the inhabitants of Gagauzia; (i) the right to appeal in a manner fixed by law to the Constitutional Court of the Republic of Moldova with a case concerning the voiding of enactments by the legislative and administrative authorities of the Republic of Moldova if they infringe on the authority of Gagauzia. Article 14 legislates that the highest official of Gagauzia shall be the Governor (Bashkan). All public administrative authorities in Gagauzia are subordinate to him. The Governor of Gagauzia shall be elected on a contested basis for four years by universal, equal, direct, secret and free vote. The Governor of Gagauzia must be a citizen of the Republic of Moldova and must have a command of the Gagauz language. The Governor shall be appointed as a member of the Government of the Republic of Moldova after a decree by the President of the Republic of Moldova. The executive body of Gagauzia, the Executive Committee of Gagauzia, is legislated by Articles 16 and 17. Article 16 says that the Executive Committee shall be appointed by the People’s Assembly at its first session for the duration of its mandate. The Assembly shall appoint the members of the Committee on the proposal of the Governor of Gagauzia by a vote of the majority of the deputies. Article 17 stipulates the following competences of the Executive Committee: 437

PRIIT JÄRVE (a) the implementation and observance of the Constitution and of the laws of the Republic of Moldova and of the enactments of the People’s Assembly; (b) participation in the functioning of specialised central administrative authorities of the Republic of Moldova in matters relating to the interests of Gagauzia; (c) the regulation in conformity with law on the whole territory of Gagauzia of property rights and the management of the economy, social and cultural development, the local budget and financial system, social security, remuneration, local taxation, environmental protection and the rational use of the natural resources; (d) the definition of the framework and priorities for economic development and scientific and technical progress; (e) the working out of programmes of economic, social, and nationalcultural development and of environmental protection, and their implementation after approval by the People’s Assembly; (f) the drawing up of the budget of Gagauzia, its submission to the People’s Assembly for approval, and its execution; (g) the resolution of questions of ecological security, the rational use, protection and regeneration of natural resources, the setting of quarantines, and the declaration of zones affected by natural disasters; (h) the drawing up and carrying out of programmes in the areas of education, culture, public health, physical culture of sports, social security, as well as protection and use of historical and cultural monuments; (i) equal civil rights and liberties, national and civic harmony, and protection of legality and of public order; (j) the drawing up and promotion of a scientifically valid demographic policy, and a programme of urban development and housing management; (k) the use and development of the national languages and cultures on the territory of Gagauzia. Decrees and orders of the Governor of Gagauzia and the Executive Committee shall be brought to the attention of the Government of the Republic of Moldova within a 10-day period from the date of adoption (Article 17 (3)). The same Article 17 gives the Executive Committee the right to initiate legislation in the People’s Assembly. The right has been actively used by the authorities of the new autonomous region. From April 1999 to January 2001, the People’s Assembly, for example, has adopted 29 local laws including laws on the budgets of 2000 and 2001, and nine decrees.16 According to information of the 16

Sbornik zakonodatel’nyh aktov Gagauzii. No.3, April 1999 – January 2001, Comrat, 2001, p. 221.

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AUTONOMY OF GAGAUZIA: A POST-SOVIET EXPERIENCE Chancellery of the People’s Assembly of Gagauzia, since 1995 until September 2001, all in all 94 local laws had been adopted. The participation of Gagauzia in the Government of Moldova has two main forms. First, the Governor of Gagauzia (Bashkan), who is elected for a four-year term, becomes a member of the Government of the Republic of Moldova after a decree of the President of Moldova (Article 14). Second, on the recommendation of the Governor of Gagauzia the directors of departments of the Executive Committee (the Gagauzian administration), appointed by the People’s Assembly, shall become members of the boards of the corresponding ministries and of departments of the Republic of Moldova (Article 19).17 The Government of Moldova played an important role at the beginning of the implementation of the 1994 law by organising the referendums and elections necessary for the constitution of Gagauzian autonomy. In March 1995, referendums were held in 36 districts in the south of Moldova. The voters were asked the following question: Do you favour your community entering Gagauz Yeri, which is an integral part of Moldova? As a result, three cities and 26 villages opted to join the autonomous region. Voter turnout was 79 percent and international observers from the Council of Europe, the OSCE and Turkey evaluated the referendums as being free and fair (Thomson 1997: 101). In May 1995 elections for the People’s Assembly and for the position of Governor of Gagauzia were held. In 1999, the People’s Assembly of Gagauzia and the Governor of Gagauzia were elected for the second time as prescribed by the Law on the special legal status of Gagauzia. As international observers did not notice major violations of laws and regulations during all these elections, it is possible to state that electoral system in Gagauzia was functioning normally. By 1998, the People’s Assembly of Gagauzia, the highest legislative body of the autonomous region, had already passed more than 50 local laws. The right of Gagauzia to take part in the foreign relations of Moldova has been implemented by including the representatives of Gagauzia in official delegations. In practice, Gagauzia has also sent its own delegations to Turkey as, for example, in March 2002. Due to cultural and linguistic proximity, Gagauzia maintains close relations with Turkey by discussing economic, cultural and educational issues. Gagauzia has opened channels dealing with economic matters in Turkey and in Transdniestria. With the latter, Gagauzia has generated political concern in Chisinau. Gagauzia has an agreement of economic cooperation with the Odessa oblast of Ukraine; similar agreements with some oblasts of the Russian Federation 17

Theoretically, the Gagauz ex officio members of various ministerial boards in Chisinau, starting with the Bashkan as an ex officio member of the central government, have to participate in all the meetings of these bodies. Unfortunately, statistics on their actual participation does not exist. However, given time and other resources needed for frequent travels between Chisinau and Comrat and taking into consideration simultaneous tasks of those officials in Gagauzia, it is quite possible that they could not attend all these meetings in Chisinau and missed some important items of information that could contribute to the disagreements between the autonomous region and the centre.

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PRIIT JÄRVE are pending. On the same day when the Law on the special legal status of Gagauzia was adopted, the Parliament also passed the resolution ‘On implementation of the Law on the Special Legal Status of Gagauzia (Gagauz Yeri)’, which tasked the Government with the urgent obligation to harmonise the legislation of Moldova with the Law on the special status of Gagauzia. However, the Government has not submitted to the Parliament suggestions on actions necessary for introducing conforming legislation to accord with the organic law; it has not brought its own enactments into accord with this law; has not ensured reconsideration and invalidation by ministries and departments of their enactments that conflict with the law. This legislative passiveness has created serious problems in the relations of Chisinau and Gagauzia. The Gagauz leadership was under the impression that Chisinau was systematically and deliberately ignoring the special status of Gagauzia trying to lower it to the level of an ordinary county of Moldova.18 4. INTERNATIONAL INVOLVEMENT: CRITICISM AND SUPPORT The end of the cold war created, in Central and Eastern Europe, a group of democratising countries who soon became new dutiful members of international and regional organisations such as the United Nations, the CSCE (OSCE), and the Council of Europe. These countries, in view of the lack of democratic experience, were subjected to various monitoring regimes. International observers regularly evaluated their elections; their economies and social policies followed the directives of the IMF and the World Bank. Important draft laws were often sent for expertise to the Council of Europe, a practice unthinkable in the West. In Moldova, international involvement has played an important role in the establishment and functioning of Gagauzian autonomy. Moldova became a member of the CSCE on 30 January 1992, a member of the UN on 2 March 1992 and a member of the Council of Europe on 13 July 1995. Since 1992, the Republic of Moldova has been monitored and assisted by the international community (the CSCE Mission to Moldova was opened in 1993) mainly because of its ethnopolitical conflict with the breakaway region of Transdniestria. Since the end of the armed conflict there, political relations between the government of Moldova and the Transdniestrian authorities have remained deadlocked. At the same time attempts were undertaken to defuse another simmering ethnopolitical conflict with Gagauzia. An ad-hoc Parliamentary Commission was created to work out a ‘status for Settlements Inhabited Predominantly by Gagauzes’. Given the novelty and sensitivity of the issue, Moldova asked experts of the Council of Europe and the CSCE to evaluate the draft law on the special status of Gagauzia, which had its first reading in the Parliament of Moldova in July 1994.

18 Author’s interviews with Mr D.Croitor, the Governor of Gagauzia and with Mr V.Yanioglo, the First Vice-Chairman of the Executive Committee in Comrat on 7 September 2001.

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AUTONOMY OF GAGAUZIA: A POST-SOVIET EXPERIENCE The initial response of the international experts was predominantly negative. The Council of Europe stated that Gagauzia was not entitled to the right of selfdetermination. Moreover, the rights that provided for Gagauz autonomy were said to be too extensive and too liberal. For example, while the draft law described Gagauzia as a subject of international law, the legal status of non-Gagauzes minorities in a future Gagauzia remained unclear, which was prone to create new problems. The Council of Europe and CSCE repeatedly stated that Chisinau should solve the Gagauz problem by means of introducing general minority legislation. The Gagauz objected resolutely to such an approach. They stressed that the Gagauz, having no kin state, are not a national minority but a people, who enjoy the right to state independence. However, they emphasised that they were not to insist on Gagauz independence in order not to undermine the territorial integrity of Moldova. Instead, they would be satisfied with an autonomy arrangement.19 In 1994, the government of Moldova settled in favour of territorial autonomy for the Gagauz. Therefore, the efforts of international experts focussed on suggesting changes, which would limit the autonomy rights on the one hand and enhance the rights of other ethnic groups in Gagauzia on the other. These suggestions were forwarded to the ad-hoc Parliamentary Commission, which sought to incorporate them before the second and final reading of the law in December 1994. At first, the hardliners among the Gagauzian leaders objected to these changes, but later they agreed, obviously considering the autonomy arrangement as such more important than the details of it. Still, international involvement in the management of the conflict in Gagauzia has been estimated as relatively modest. Some authors have claimed that the success of the arrangement was partially due to the fact that it remained bilateral (Chinn and Roper, 1998: 97). Indeed, the mandate of the CSCE Mission to Moldova, established in April 1993 in the wake of the Transdniestrian conflict, did not even mention Gagauzia. However, on 13 November 1993, soon after its take-off, the CSCE Mission to Moldova issued its Report No. 13.20 This report was mainly proposing ways for resolving the conflict between Chisinau and Transdniestria but it also made interesting references to Gagauzia, which shows that, regardless of Transdniestria as the main focus, the Mission had a holistic approach to Moldova. In the Transdniestrian conflict the CSCE tried, naturally, to lead both sides to a compromise. Pushing aside the extremes, it rejected ‘to discuss the “PMR” (Pridnestrovskaya Moldavskaya Respublika – P.J.) proposal for a “confederation”, which presupposed the existence of separate states and aimed at distributing all jurisdiction among them at the expense of a only formally existing centre’. Neither 19

The Gagauzian side presented these views to the HCNM during his visit to Gagauzia in December 1994. I am indebted to Professor Stefan Troebst of the University of Leipzig for kindly providing me with his manuscript (Troebst, 1994). Back in December 1994, Professor Troebst was a member of the CSCE Mission to Moldova and accompanied the HCNM to Gagauzia. 20 See at <www.osce.org/moldova/documents/files/Report13.pdf>.

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PRIIT JÄRVE did it ‘attempt to please those circles in Chisinau, which profess to consider Transdniestria simply another part of the country and denounce any attempt to let it benefit from a special status’. Instead, it tried ‘to develop middle-of-the-road ideas on how to re-establish the territorial integrity of Moldova by offering Transdniestrians a measurable degree of self-rule’. The Report preferred ‘autonomy’ to ‘special status’. It underlined that under the Soviet regime ‘autonomy’ had little real significance and was thus compromised. This explains why ‘autonomy’ is generally unpopular with many Moldovans and why ‘special status’ was given preference instead. However, as the Report pointed out, in the context of a centralized state like Moldova ‘a special status’ for a region by definition had to entail autonomous rights, because the term implies that this region is governed less directly, thus leaving more room for self-rule (autonomy). Moreover, the Report claimed, that experience showed that autonomy solutions such as those in South Tyrol, the Spanish Basque Country or the Finish Åland Islands could go as far or even further than devolution in some federal states. Further, the Report referred to a CSCE Expert Meeting on National Minorities in Geneva in July 1991, which had ‘proposed local and autonomous administration and territorial autonomy including the establishment of legislative and executive organs stemming from free and fair elections as a mechanism for multi-ethnic cohabitation’. It goes on to discuss the future structures of the Moldovan state as a whole and assesses that three federal states, as suggested by some, (Transdniestria, Gagauzia, and the remaining but by far largest part of the country) would create an unbalanced state structure. Instead, the Report suggests, ‘it could make perfect sense to subdivide the country into eight to ten regions (one or two of them being Transdniestria, one the area around Bendery, another one the preponderantly Gagauz-inhabited area around Comrat) and to transfer power from the capital to the new regional structures’. In the opinion of the Mission, a balanced distribution of power between the capital and a region will be the essence of any special status. The Report contains a passage, which shows that a draft ‘Law on the special status of the territory densely populated by the Gagauz people within the Gagauz Yeri’ contributed some ideas to the proposal of the Mission to set up a Special Region of Transdniestria within the Republic of Moldova. The Special Region should have its own executive, elective assembly, and court. It will be an integral part of the Republic of Moldova but enjoy considerable self-rule. Thus, while the conflict in Transdniestria was the Mission’s main concern, it viewed Transdniestria and Gagauzia together as similar challenges to the unitary state structure of Moldova. The comparison of Report No. 13 with the ‘Law on the special legal status of Gagauzia (Gagauz-Yeri)’, which was adopted a year later, shows that some ideas and solutions proposed for Transdniestria were eventually applied to Gagauzia. Though, the special autonomous status to be granted to Gagauzia initially caused objections from the Council of Europe. It criticized the

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AUTONOMY OF GAGAUZIA: A POST-SOVIET EXPERIENCE excessive downward delegation of powers to the autonomous region.21 The years to come showed that this criticism was not without ground. Although the CSCE/OSCE did not have Gagauzia in its original mandate the organization later expanded its activities to include the autonomous region. In 1994, it was the Moldovan Government which decided to invite both the Council of Europe and the OSCE High Commissioner on National Minorities (HCNM) to comment on the draft law on the special status of Gagauzia. Both were concerned that granting territorial autonomy to the Gagauz would create new ethnic minorities inside Gagauzia in villages where substantial numbers of Moldovans, Bulgarians, Ukrainians and Russians were living. There was also a broader concern that the law would create a precedent for the whole of Europe where governments would be opposing Gagauz-type solutions to provide territorial autonomy for their national minorities. Additionally, experts and other international actors noted that the formulations of the law were too ambiguous on taxation and other financial matters. While the Gagauz example did not lead to a Europe-wide upsurge of demands for autonomy, Article 18 of the law on the special legal status, which ambiguously establishes budget relations between Moldova and Gagauzia, did cause most of the friction between the autonomous area and the central government later on. In June 1994, the Moldovan Government invited the HCNM to visit Moldova and evaluate the interethnic relations in the country. The visit of the HCNM took place at the beginning of December 1994 when the second reading of the law on Gagauzian autonomy in the Moldovan parliament was pending. The HCNM met with practically all persons in Chisinau and Gagauzia who were engaged in the negotiation process. In Gagauzia he explained to the local leaders that certain concessions were necessary to achieve a settlement with the central government on the special status for Gagauzia. Most important concessions in this regard were that Gagauzia was no longer described as a subject of international law, and that the legal status of the non-Gagauzes in the future Gagauzia was enhanced by inserting a new article into the draft law (Troebst, 1994: 4). It is believed that these meetings with a high-ranking representative of the international community contributed to the adoption of the law in the second reading on 23 December 1994. Apart from the visit of the HCNM, the OSCE monitored the elections and evaluated the efficiency and functional validity of the electoral system in the autonomy agreement. The OSCE, for instance, assessed the elections for the Governor of Gagauzia and the elections for the People’s Assembly of Gagauzia in August/September 1999. In 1999, the mandate of the OSCE Mission to Moldova included such responsibilities as: the monitoring of inter-ethnic relations (e.g. post conflict rehabilitation in Gagauzia), the provision of advice and expertise, as well as other contributions including a framework for a political settlement in observance with international obligations and commitments regarding human and minority rights, or 21

Moldovan concessions to Gagauz deemed to be excessive, RFE/RL Daily Report, no. 127, 7 July 1994.

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PRIIT JÄRVE the mediation, in co-operation with local authorities of the disputes or complaints in the human dimension areas. Furthermore, as it is outlined in the OSCE Moldova Mission Report of 2000 on Current Human Dimension Activities, the expansion of OSCE activities in Gagauzia was among the priorities for 2000/2001. Namely, these priorities included ‘monitoring the political situation in the autonomous region of Gagauz Yeri (Gagauzia) and the Moldovan-Gagauzian centre-region relations in the areas of tax revenue, budget allocation, public property ownership, and adjustment of legislation’.22 The latter priorities were followed up on 11−12 December 2000, when the OSCE Mission to Moldova organized in Chisinau a workshop on ‘ChisinauComrat Center-Region Relations in the Fields of Fiscal-Budgetary Policy, Public Property and Adaptation of Legislation’. It may be argued that there were important inputs from other external actors such as the Ukraine and Turkey. The latter played a significant role in the eventual arrangement for Gagauzian autonomy promising investments and development assistance for the Southern Regions. The visit of the president of Turkey Suleyman Demirel to Moldova in 1994, prior to the adoption of the law on the special status of Gagauzia, has been described as crucial to the resolution of Gagauzia issue.23 International involvement continued in connection with the adoption of the Legal Code of Gagauzia (regarded by the Gagauz as their Constitution), which was written by the Gagauz and reviewed by different experts at home and abroad. The Moldovan Supreme Court on 17 March 1998 nullified the decision of the People’s Assembly of the autonomous region to hold a referendum on a constitution for the region at the same time as the 22 March elections to the Moldovan parliament. Following that decision, the Central Electoral Commission revoked its earlier decision to allow the referendum. A spokesman for the commission said the People’s Assembly failed to bring the draft regional constitution into line with Moldova’s basic law.24 However, after receiving generally favourable opinions from the Council of Europe25, the Moldovan Ministry of Justice, and independent lawyers 22

Moldova/OSCE Mission Report on Human Dimension Activities, October 2000/Priorities for 2000/2001, at <www.osce.org/odihr/docs/missions00-mol.htm>. 23 Demirel in Moldova, RFE/RL Daily Report no.105, 6 June 1994 24 The legal argument for stopping the referendum was that the draft Code of Gagauzia had been distributed only in the Russian language, thus violating the law on languages, and produced only in a limited number of copies, so that the electorate was not sufficiently informed about its substance. Thus, a translation of the Russian version into Moldovan and Gagauzian was worked out afterwards and as a result the Code of Gagauzia happens to be the only legal act of Gagauzia available also in Gagauzian and Moldovan. The rest has been published in Russian only. (I owe this clarification to Claus Neukirch). 25 On 7 May 1998, the Venice Commission concluded in its ‘Opinion on the Legal Code of Gagauzia’ that the draft Legal Code constitutes a good basis for defining the rules governing Gagauz autonomy. Yet, the Commission pointed out that the draft Code regrettably incorporates numerous provisions derived from other legal texts which it had simply copied. The result is that the draft Code covers matters which in actual fact fall outside the

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AUTONOMY OF GAGAUZIA: A POST-SOVIET EXPERIENCE from the U.S., all of whom agreed that the document does not contradict the constitution and is in line with international provisions on local autonomy, the People’s Assembly on 14 May 1998 unanimously voted in favour of the region’s basic law. Active cultural and economic involvement of Turkey continued after the autonomy agreement. In June 1998, the Turkish President Suleyman Demirel came to Moldova to discuss bilateral relations and economic cooperation with his host, President Petru Lucinschi, and to visit Gagauzia. Demirel thanked his hosts for the way Moldova had solved the problem of Gagauz autonomy, saying that the Gagauz population is ‘a bridge’ in the two countries’ friendship. Demirel announced that Turkey had agreed to grant Moldova a $35 million credit to be used ‘at its discretion’ but that $15 million is to be used for improving the water supply system in Gagauzia. In fact, Turkey has played a role of a surrogate kin state of Gagauz people due to cultural and language proximity with the Gagauz both before and after the power sharing agreement was concluded. The role of international assistance became crucial once again during the political crisis of the beginning of 2002. Then, Resolution 1280 and Recommendation 1554 of 24 April 2002 of the Parliamentary Assembly of the Council of Europe were much anticipated in Moldova, which had to live with months of anti-government demonstrations in the middle of Chisinau and at the same time had a deepening conflict with and within Gagauzia. All sides of the Moldovan conflict interpreted these documents as their own success. This resolved the high political tension, stopped public demonstrations in Chisinau and ended mutual accusations between government and opposition. The Government of Moldova got one more chance to work constructively on the country’s many problems.26 The management of the crisis, at the beginning of 2002, in relations between Chisinau and Comrat showed that international organisations, particularly the OSCE and the Council of Europe, can play a safeguarding role in bringing the parties together for peaceful and constructive negotiations, thus helping save the system of power sharing from collapsing. 5. MAIN PROBLEMS OF THE AUTONOMY In 1995, Charles King rightfully predicted ‘as the central government and the new Gagauz administration are beginning to discover, in formulating a comprehensive minorities policy, the devil is always in the details’ (King, 1995, 25). This proved right especially in economic and financial issues, such as dividing competences in property relations and taxation between the autonomous region and the centre, which have been addressed most regularly. However, solutions that would satisfy jurisdiction of Gagauzia, raising doubts in the reader’s mind as to which is the right text (the Legal Code or the text copied) (at <www.venice.coe.int/site/interface/english.htm>). 26 See Igor Plugatarev and Natal’ia Prihodko. ‘strasburgskii stsenarii moldavskovo zatish’ya’, Nezavisimaya gazeta, 21 May 2002.

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PRIIT JÄRVE both sides have not been found and major disagreements over these issues have persisted (Neukirch, 2000: 10−2). The legal basis of economic autonomy of Gagauzia is provided by Articles 6 and 18 of the law on the special status. Article 6 states that ‘[t]he land, mineral resources, water, flora and fauna, other natural resources, movable and real property situated on the territory of Gagauzia shall be the property of the people of the Republic of Moldova and at the same time shall represent the economic basis of Gagauzia’.

Actually, Article 16 of the Gagauzian ‘Law on property’ of 25 February 2000 seems to claim more by stating ‘[t]he property of Gagauzia includes property on the territory of Gagauzia, but also a respective share of the public property of the Republic of Moldova, including the property situated in other regions and countries’. Article 19 of the same law proclaims the right of Gagauzia to form such a joint property together with the Republic of Moldova, other countries and regions with agreed shares of each side in that property. According to Article 17(2), this joint property shall be regulated by laws of the Republic of Moldova, of Gagauzia, by treaties and by international law. Article 18 of the law on the special legal status establishes budget relations between Moldova and Gagauzia in the following way: (1) The local budget shall include any type of payment fixed by legislation by the Republic of Moldova and by the People’s Assembly. (2) The mutual relationships of the budget of Gagauzia and of the state budget shall be established in conformity with the laws of the Republic of Moldova on budgetary system and on the state budget for the corresponding year in the form of fixed payments out of all form of taxes and payments. To enable implementation of Articles 6 and 18, Article 12 authorises the People’s Assembly to adopt laws in the areas of local budget, financial and taxation activities, economy and ecology. The interpretation of Article 18 has caused recurrent disagreements between Chisinau and Comrat. A major attempt to work out a compromise took place on 11−12 December 2000 in Chisinau, when the OSCE Mission to Moldova organized the workshop with high-level participation on ‘Chisinau-Comrat Center-Region Relations in the Fields of Fiscal-Budgetary Policy, Public Property and Adaptation of Legislation’. This workshop once more highlighted the unresolved issues in the relations of Gagauzia and the central government.27 27

I am thankful to Mr Gottfried Hanne, Member of the OSCE Mission to Moldova, for providing me with the materials of this workshop, rendering invaluable assistance and sharing with me his observations concerning the relations between Chisinau and Comrat during my visit to Moldova from 3 to 10 September 2001. The following in the present sub-section draws on the materials of the mentioned workshop.

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AUTONOMY OF GAGAUZIA: A POST-SOVIET EXPERIENCE As pointed out in the materials of the workshop, one of the major issues of debate was Article 18 of the Law on the special legal status of Gagauzia. The discussion concentrated from the very beginning on the sources from which the Gagauz regional budget should be drawn. The Gagauz side expressed the view that the sources of the region’s budget should be solely from taxes and payments collected on the territory of Gagauzia, plus customs and excise taxes for goods consumed in Gagauzia. According to the Gagauz point of view the reasonable needs of the centre should be estimated and all revenues left should remain in the autonomous region. Moldovan Government representatives on the other side stressed that it is technically not possible to estimate the customs and excise taxes collected for goods consumed in Gagauzia, and that customs, excise tax, as well as VAT are in all states exclusive revenues of the centre and cannot be considered legitimate revenues of second level territorial authorities. The discussion at the workshop showed the incompatibility of basic positions. The Moldovan side tended to neglect the special nature of the autonomy status of Gagauzia in comparison to the status of ordinary counties and maintained that there was no need for any special treatment of Gagauzia in comparison to ordinary counties in financial terms. The Moldovan Finance Ministry held the position that, after the reform of Moldova’s financial and tax system, Article 18(2) of the Law on the Special Legal Status of Gagauzia contradicts other, ordinary Moldovan legislation and therefore did not fit into the new financial and tax system. Thus, according to the Ministry of Finance, the respective article of the law contradicted itself and needed to be amended. The Gagauz side stressed that the position of the Law on the Special Legal Status of Gagauzia as an organic law was superior to the ordinary finance and tax legislation of Moldova and demanded the full implementation of that law and its Article 18. The Gagauz side viewed the autonomy status as a sufficient legitimate basis for more financial resources in comparison to ordinary counties. The proposal to assign to the centre only those financial means which are reasonably necessary to cover the centre’s needs, but to hold all other revenues in Gagauzia, gave the impression that some Gagauz representatives regard their autonomous region to be more a state in itself than an autonomous region inside one single state. Such attitudes can be considered typical of the situation of all-out political fighting over scarce resources when old Soviet ‘know-how’ – to get one, ask for more – was used by the negotiators. While no agreement on common recommendations or principles was possible due to incompatible interpretations of Article 18, the idea to establish a permanent common commission between Chisinau and Comrat to address disagreements at an early stage and to establish a representative office of the Gagauz People’s Assembly at the Parliament of the Republic of Moldova was supported. It was said that these organs should also address the need for exchange of information and regular consultations in the financial and economic spheres. ‘Today, we are a territory which is discriminated against’, said the Governor of Gagauzia to the author in early September 2001, and added ‘the non-attentiveness of 447

PRIIT JÄRVE Moldova is pushing us into the embrace of Transdniestria. We have explained it all to the President of Moldova but nothing has changed.’28 On 11 September 2001, the People’s Assembly adopted a resolution ‘On Sociopolitical, Financial and Economic Situation in Gagauzia’, which states that the highest leadership of Moldova ‘deliberately does not implement’ the resolution of the Moldovan Parliament of 23 December 1994 ‘On the Implementation of the Law on the Special Legal Status of Gagauzia (Gagauz Yeri)’. The Speaker of the People’s Assembly, commending this resolution, claimed that the new leadership of Moldova has done nothing to change the situation in which the official Chisinau is attempting to revise this law while blocking the amendments to the Constitution on the division of competencies between Chisinau and Comrat. Moreover, the right of Gagauzia to form its own budget is constantly violated. As a result, every year Gagauzia is suffering considerable financial and economic losses. Chisinau has attempted several times to privatise properties of Gagauzia without the knowledge and consent of the Gagauzian authorities. Therefore, the People’s Assembly asserted that the destructive methods of Chisinau ‘can totally undermine the confidence of the people of Gagauzia’.29 At the end of 2001, when the Communist Party, which promised to solve the problems of Gagauzia, had been in power for almost a year, the Gagauz were finally given the right to collect excise tax on their territory after the President of Moldova sent back the Law on the Budget of 2002 to the Parliament for amendments. While the transfers of funds from the centre to Gagauzia were simultaneously reduced according to the Ministry of Finance’s estimates of the expected volume of excise tax, the Gagauz remained upbeat hoping to collect more.30 The central government has not carried out several of its obligations as specified by the resolution of 23 December 1994 of the Moldovan Parliament ‘On implementation of the Law on the Special Legal Status of Gagauzia (Gagauz Yeri)’. Among these urgent tasks to be carried out within a month were the following: to submit to the Parliament suggestions on actions necessary for introducing conforming legislation to accord with the Law on the status of Gagauzia; and to bring its own enactments into accord with the named Law. For example, the problems with the administration of justice in Gagauzia result from the fact that Chisinau authorities have failed to set up the Tribunal of Gagauzia, a part of the legal system of Moldova. As this Tribunal must also confirm the results of elections in Gagauzia, the absence of it could be used to declare all elections formally illegal. So far, no central authority has done so, but the administration of Gagauzia is living under constant threat that one day this may happen. This again demonstrates the reluctance and/or inability of the central government to implement the law on the status of Gagauzia as required, which is putting the autonomy under a constant threat. Another drawback of the court system 28

Interview with Mr D.Croitor, the Governor of Gagauzia, in Comrat on 7 September 2001. See Nezavisimaya Gazeta, 22 September 2001, at <www.ng.ru/cis/2001-0922/5_nega.html>. 30 I owe this clarification to Mr Gottlieb Hanne of the OSCE Mission to Moldova. 29

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AUTONOMY OF GAGAUZIA: A POST-SOVIET EXPERIENCE of Gagauzia is that while Gagauzia has adopted laws on economy it has no specialised court for economic issues. Whenever these cases reach the courts in Chisinau, the laws of Gagauzia can be easily ignored. In other areas such as communication and media, health and social services, human and minority rights and, last but not least, education, the problems of the autonomy are caused mainly by the lack of resources, which can, of course, be finally attributed to disagreements over economic rights of the autonomy. In education, however, besides resources, many problems are related to the inherited poor status of the Gagauz language. The authorities of Soviet Moldova introduced a written language to the Gagauz only in July 1957. The Gagauz language was unable to establish itself during the following years as the main language of the Gagauz and is still facing difficulties in this regard.31 There appears to be an overload in learning of languages in the schools of Gagauzia which teach the three local official languages – Russian, Moldovan and Gagauz as compulsory subjects, accompanied by English or German as foreign languages. This overload has two negative effects: many children cannot learn any of these languages properly, and the time left for other subjects is insufficient, which impairs the general level of education that can be provided (Kristioglo 2000: pp. 222−4). Nevertheless, under the autonomy a sound legal basis has been created for the development of culture, which is regarded as the most important achievement. Local experts have referred to the positive role Article 27 of the ‘International Covenant on Civil and Political Rights’ has played in achieving this, to which Moldova is a party. 6. CRISIS OF 2002 During 2001, the relations between Gagauzia and the central government were deteriorating rather than improving, as the communists had not been able to deliver what they promised to the Gagauz leaders before the national elections of February 2001. In fact, the Communist Party of the Republic of Moldova signed an agreement with the members of the legislative body of Gagauzia that, if elected, the party would support moves to enshrine the autonomous status of Gagauzia in the Constitution of Moldova; ensure Gagauz representation in state bodies at all levels; clarify the division of powers between Gagauzia and the centre; raise the issue of Moldova’s joining the CIS Customs Union and the Belarus-Russia Union; protect

31

In 1989, 87.5 per cent of the Gagauz regarded Gagauz as their native language. A sociological survey in 1998 established that only 37.8 per cent of the adult population of Gagauzia knew the written form of the language, while 44.1 per cent were speaking Gagauz with their children at home. Concerning the language of education of their children, 80.6 per cent of the respondents preferred Russian, 4.6 per cent − Gagauz in combination with other languages, 2.6 per cent – Gagauz, 2.6 per cent – English, and 1.4 per cent – Moldovan (Kristioglo, 2000: pp. 223-4).

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PRIIT JÄRVE the Gagauz language; raise Russian to the status of second state language alongside Moldovan; pursue a peaceful resolution of the Transdniestrian conflict.32 On 25 February 2001, the Communist Party of the Republic of Moldova collected 50.7 per cent of the votes at the parliamentary elections, which gave it the absolute majority of 71 seats out of 101. The OSCE characterised the elections as free and fair. The autonomous district of Gagauzia gave the strongest support of all regions of Moldova to communists – 80.57 per cent of votes were cast for this party.33 The victory of communists generated high expectations in Gagauzia given their very concrete pre-election promises to Gagauz officials. However, disappointment with the new government started to spread among the Gagauz as the authorities in Chisinau continued to use laws, which were not harmonised with the organic law on Gagauzia, and the tensions between Chisinau and Comrat started to mount again. Most importantly, in 2001, the transfers from the central budget to Gagauzia were established far below the level of transfers for the other regions of Moldova. On 10 May 2001, to fulfil the pre-election promise to confirm the special status of Gagauzia in the Constitution, the Parliament of Moldova adopted a resolution ‘On the creation of a commission for harmonising of legislation with the Constitution of Moldova in questions dealing with the special status of the autonomous territorial unit of Gagauzia’. Of the 19 members appointed to the commission seven were from Gagauzia. However, the Gagauzes decided to suspend their membership after the first meeting as they perceived an intention to revise the 1994 law in the very name of the commission. The Gagauz stressed that is was the legislation of Moldova, which had to be harmonised with the 1994 law on the special status of Gagauzia. Regardless of this act of protest, the Gagauz continued working on their draft amendments to the Moldovan Constitution.34 In the beginning of 2002, the general political situation in Moldova deteriorated considerably. Negotiations with the breakaway region of Transdniestria had broken down being replaced by mutual accusations. The decisions of the Ministry of Education to start with compulsory Russian in the second year of elementary school instead of the fifth, and to replace the high school course ‘History of Romanians’ with a new course of ‘History of Moldova’ helped some political factions to mobilise thousands of people, including schoolchildren, for everyday antigovernment, anti-communist protest demonstrations in the centre of Chisinau since the beginning of January, which continued even after the Minister of Education reversed these decisions and resigned at the end of February.35 32

Communication from Elizabeth Teague on 6 April 2001 at the Association for Study of Nationalities (ASN) Annual Convention in New York. 33 See the results of the elections at <www.ifes.md>. 34 Interview with Mr V.Yanioglo, the First Vice-Chairman of the Executive Committee of Gagauzia, on 7 September 2001 in Comrat. 35 These demonstrations ended only after the Parliamentary Assembly of the Council of Europe adopted on 24 April 2002 its Resolution 1280 (2002) ‘Functioning of democratic institutions in Moldova’.

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AUTONOMY OF GAGAUZIA: A POST-SOVIET EXPERIENCE In addition, on 25 January 2002 the President of Moldova promulgated a new law of the administrative-territorial organisation to re-establish 32 districts (rayons), which existed until 1998. While Gagauzia was in no need to go back to the district system because it did not abolish its three districts in 1998, the new law, nevertheless, threatened Gagauz autonomy. So far, the districts of Gagauzia had only heads of administration, appointed by the Bashkan, but no elected councils. Councils are elected at the local level, in villages and towns. In May 2003, in all districts of Moldova councils have to be elected which then will report directly to Chisinau. This threatens to leave the administration of Gagauz autonomy without any meaningful role. But more importantly, in the beginning of 2002, the central authorities launched accusations of corruption against the leaders of Gagauz autonomy, including the Bashkan and the Speaker of the People’s Assembly, by invoking the results of investigations of the State Auditing Chamber, which were completed already in August 2001. Referring to that, on 31 January 2002, a group of members of the People’s Assembly of Gagauzia, allegedly inspired and supported by the central authorities, adopted a decision to dismiss the Bashkan and to call a referendum in Gagauzia for approval of this decision. However, because of several violations of Moldovan and Gagauzian laws in the process of adoption, other members of the People’s Assembly and legal experts of Gagauzia considered these decisions illegal. Most importantly, the decision to dismiss the Bashkan remained two votes short of the necessary two-thirds majority as required by the ‘Law on the Special Legal Status of Gagauzia’. On 5 February 2002, the OSCE Mission to Moldova issued a press release under the title ‘Leadership of the Gagauzian Autonomy Under Attack’ in which it noted ‘with deep concern a number of activities carried out in recent days against the democratically elected authorities of Gagauzian Autonomy’. On 11 March, the Gagauz leadership issued appeals to the media, to foreign ambassadors in Moldova, and to the OSCE and other international organisations asking for help to arrange a meeting with Mr Voronin, the President of Moldova. The ensuing contacts of foreign diplomats with the President might have helped. On 20 March, the President of Moldova had long-awaited meetings with the Bashkan and a group of non-oppositional members of the People’s Assembly. In the press, these meetings were characterised as constructive and as the beginning of a new phase in relations between Chisinau and Comrat.36 Meanwhile, international mediation between the various conflicting parties in Moldova continued. In early April 2002, the High Commissioner on National Minorities paid a three-day visit to Moldova during which he commented on the turbulent political climate there, including the situation in Gagauzia, stressing the

36 See Nezavisimaya Moldova, 21 March 2002, (at <www.nm.md/daily/news/2002/03/21.html#1>); a more detailed account of the meetings is available at <www.gagauz-press.narod.ru/013-20-03.htm>.

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PRIIT JÄRVE need for constructive dialogue and appealed to all parties to respect the rule of law and to follow democratic procedures.37 Soon after that, on 15 April, the Executive Committee of Gagauzia resigned voluntarily because, as it announced, it could not fulfil its responsibilities due to the split in the People’s Assembly.38 On 24 May it appeared that the opposition in the People’s Assembly had acquired three additional members, who helped dismiss the Speaker and elected the leader of the opposition into that office by the required majority. On 25 June, Mr Croitor, the Bashkan announced his resignation noting, ‘[t]he confrontation of legislative and executive powers has created an unbearable situation which may be transformed into open conflict in the villages and towns of Gagauzia’.39 Mr Croitor did not belong to the ruling communist party, which might have been one of the reasons why Chisinau wanted to replace him. Thus, the authorities of Moldova, obviously dissatisfied with recurrent demands of Gagauzian leadership to amend the Constitution, let alone national legislation, and irritated by Gagauzia’s ongoing cooperation with Transdniestria, had succeeded in changing the leadership of the autonomy. 7. PROSPECTS The prospects of the Gagauzia autonomy arrangement for the future will depend considerably on how Chisinau and Comrat can defuse chronic disagreements over compatibility of national laws with the 1994 law on the special status of Gagauzia. In these efforts an important role belongs to the discussion and refinement of additions to the Constitution of Moldova in order to create explicit constitutional guarantees for the autonomy and defuse the contradictions between the 1994 law and some articles of the constitution. Both sides, Chisinau and Comrat, prepared draft constitutional amendments, which were essentially different. While Chisinau tried to incorporate the autonomy of Gagauzia into the Constitution, though, not very convincingly for the Gagauzian side, the latter, in fact, proposed amendments, which would constitute Moldova as a federation. As a result, neither the OSCE, nor the Moldovan side supported the Gagauzian draft, which was rejected. In December 2001, the Parliamentary Commission on changes to the Constitution of Moldova submitted a request to the Venice Commission to give an opinion on the draft law ‘On changes and amendments to the Constitution of the Republic of Moldova’ with regard to the status of the Gagauz autonomy. A group of Rapporteurs of the Venice Commission visited Moldova in February 2002 to discuss with representatives of the Moldovan and Gagauz authorities the draft law on constitutional changes relating to autonomous regions within the Republic of Moldova, with particular reference to the territorial autonomy of Gagauzia. The 37

See <www.osce.org/news/generate.php3?news_id=2395>. See Moldavskie vedomosti, 24 April 2002; <www.vedomosti.md/index.asp?doc= 1_2&nom=450>. 39 Nezavisimaya gazeta, 27 June 2002. 38

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AUTONOMY OF GAGAUZIA: A POST-SOVIET EXPERIENCE amendments drafted by the People’s Assembly of Gagauzia were also presented to the Rapporteurs but they considered it as an unrealistic basis for any further discussions because it could have disruptive effects with regard to the entire state structure of Moldova. In March 2002, the Commission issued its Consolidated Opinion on the Moldovan draft of the constitutional amendments.40 In the Commission’s opinion, the extent of the powers conferred on the Gagauzian autonomous institutions is striking as the People’s Assembly can legislate on almost any important area with only the exceptions of defence and foreign policy. The Commission noted that the range of executive responsibilities is equally comprehensive, as it has to implement the legal acts of the People’s Assembly, which cover all important areas of life. It is difficult, in the opinion of the Commission, to see that the creation of a legislature in Gagauzia whose laws are capable of super ceding national laws is consistent with Article 60 of the Constitution of Moldova in its conferring of sole legislative competence on the national Parliament. The problem also arises with Article 66 of the Constitution, which empowers Parliament to ensure legislative unity of regulations throughout Moldova.41 At the same time, the Commission recommended that ‘if the solution arrived at in 1994 is intended to represent a lasting solution to the problem of Gagauzian autonomy and self-determination, it would represent a better protection for the legal order established by the 1994 Law if the essential features of that law (and not merely the right to make such a law) were reflected in the Constitution’;42 and that ‘there are good reasons why the 1994 Law should be given a constitutional underpinning, both to avoid any question about its compatibility with the constitutional framework and possibly to avoid the essential features of it being altered without the consent of the people of the autonomous region’.43 The Venice Commission further supported that ‘the Popular Assembly of Gagauzia would be granted the right to legislative initiatives. As with most countries with territorial autonomies the final decision on the initiative belongs to the national parliament’.44 The Commission also pointed out that while Article 12 of the law on the special legal status of Gagauzia gives the People’s Assembly the right to submit to the Constitutional Court legal acts adopted by the legislative or executive authorities of the Republic of Moldova which it considers to infringe the autonomous powers of Gagauzia, the authorities of Moldova have no power to submit any legal act of the People’s Assembly to the Court which these authorities consider to exceed the powers of the Assembly. The Commission recommended that the authorities of 40 European Commission for Democracy Through Law (Venice Commission). ‘Consolidated Opinion on the Law on Modification and Addition in the Constitution of the Republic of Moldova’, Strasbourg, 12 March 2002. 41 Ibid., items 25 and 26. 42 Ibid., item 27. 43 Ibid., item 28. 44 Ibid., item 31.

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PRIIT JÄRVE Moldova should have the power to challenge the constitutionality of the normative acts of the autonomy.45 In the ‘Conclusions’ of its Opinion the Commission evaluated the draft law as a positive development since it recognises the existence of the autonomy and determines its competences at the level of the Constitution of the Republic of Moldova. Nevertheless the Commission noted, the draft law has a number of shortcomings that should be studied by the parties involved in the process. The Venice Commission welcomed the willingness of the Moldovan and Gagauz authorities to further co-operate on this matter and hoped that the Commission’s Opinion will be taken into account in the future work on the constitutional amendments. Thus, although the Gagauzian draft amendments were rejected in the process, the opinions and recommendations of the Venice Commission given on the Moldovan draft are favourable to the Gagauzian side as they aim at underpinning the autonomy in the constitution and at creating the legal guarantees for its development. By the time of this writing in July 2002, the abovementioned amendments to the Moldovan Constitution had reached the Constitutional Court, which had to consider them before they could be processed by the Parliament. It was expected that the Court will give its opinion of the Moldovan draft in April 2002, but this did not happen. A new deadline has not been set. Moreover, the Constitutional Court intended to consider the Venice Commission’s Opinion, but it has become known that this has not yet taken place. 8. CONCLUDING REMARKS A post-communist state faces formidable challenges. It is supposed to transform, all at once, to a multiparty democracy, to carry out ownership reform together with the introduction of a market economy, to build up new state institutions, often from scratch, and last but not least, to enforce the rule of law. In theory, these transitions are deemed to support one another because democracy, market economy and the rule of law are all sine qua non elements of Western states which function together. In post-communist practice, however, the early phases of transition to these essential elements do not produce much synergy. On the contrary, the simultaneous transitions are often at cross-purposes. For example, the participants in privatisation, the infamous ‘new’ Russians, Moldovans, etc., are not interested in transparency, or in rule of law. While trying to maximise its political and economic power, no group is willing to share it with others. As George Schöpflin points out, with the collapse of communism not only the ideology but also the communist state disintegrated. Despite a questionable legitimacy, the institutions that the communist state had established provided a degree of order and coherence seen as ‘normal’ by many. Attempts to establish the authority of post-communist political formations could neither rely on the state, which had disintegrated, nor on civil society, which did not exist under communism. 45

Ibid., Other observations.

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AUTONOMY OF GAGAUZIA: A POST-SOVIET EXPERIENCE Hence, post-communist politics and social-cultural coherence came to depend heavily on ethnicity (Schöpflin, pp. 2001: 8−9). This point of departure of post-communist politics could do nothing but give rise to feeble state institutions fortified by ethno-nationalist rhetoric. This combination did not produce the order and coherence required for a normal and peaceful development of these societies. Instead, the ethno-cultural preferences of ethnic majorities, imposed on the whole population in certain multiethnic countries, induced claims of smaller ethnic groups to share power through autonomy or to become independent altogether. Weak state institutions have been unable to defuse the resulting ethnopolitical tension and conflicts. In addition to initial ethno-cultural disagreements, these conflicts have been fuelled by clashing economic interests of emerging ethnic elites in the distribution of state property through privatisation or otherwise. Inefficient collection of taxes, large regional differences and starving social programmes, which all ask for state-level action, are only a few of the reasons which are generating a strong tendency towards centralisation of resources and reluctance to share power with regions, or minorities. As a consequence, the atmosphere remains unfavourable for the implementation of power sharing as such. For example, the aversion to territorial autonomies in Central and Eastern European countries is overwhelming. Therefore, power sharing in post-communist, transitional settings is accepted only as an exception, if at all, when it appears to be the way to avoid dangers of social disruption, armed conflict and chaos. Alas, when the imminent dangers seem to have vanished, the implementation of power sharing may well stall and new tensions can develop. The Republic of Moldova, a post-soviet country, reflects the pattern just described. The ‘weak state syndrome’ has plagued Moldova ever since its independence in 1991. At the same time, Moldova is exceptional because in 1994 it legislated autonomy for the territorial unit of Gagauzia (Gagauz-Yeri). The creation of this autonomy was not a manifestation of a noble nationwide wish to be democratic and to share power but instead sought to avoid the worst, that is a recurrence of the Transdniestrian scenario in Gagauzia. This aim has been achieved. However, more than seven years of Gagauz autonomy have shown, as predicted by some, that the relations between the central government and the authorities of the autonomous region could not escape fundamental disagreements over vital issues of power sharing. A weak state seems to be inherently unable to provide for a strong, well-functioning autonomy, which would enjoy a clear-cut power sharing arrangement with the centre. Another lesson of the last seven years is that the interaction between Gagauzia and Transdniestria has remained an important factor in the domestic politics of Moldova. In 1994, it was the painful experience of the bloody conflict in Transdniestria, which inspired the Moldovan authorities to create the Gagauz autonomy. Later, it was the ineffective enforcement of the Law on the special legal status of Gagauzia, which gave Transdniestria reason for its refusal to negotiate any similar status of (non-working) autonomy within Moldova with the central government. If a federal arrangement needs to be introduced in Moldova to finally 455

PRIIT JÄRVE overcome the crisis with Transdniestria, Gagauzian autonomy may benefit again from becoming a part of a federation. The experience of power sharing between Moldova and its autonomous region of Gagauzia has displayed a pattern of recurrent need in international assistance at different levels and of various magnitudes, whenever the disagreements between the sides tended to escalate into serious conflict due to contradictory interpretations of the law on the special legal status of Gagauzia, and/or because of the cases of its implementation, which were perceived as wrong by one of the sides. These disagreements have stemmed to a large extent from ambiguously formulated articles of the 1994 law on the status of Gagauzia which gave rise to incompatible expectations and attitudes of the sides, particularly in economic and financial matters. Sometimes, insufficient administrative capacity, arbitrary decision-making and improvised action have aggravated considerably the existing disagreements and transformed them into serious confrontations. These two factors − shortcomings in the power sharing agreement and imperfect administrative (and political) culture − can be held responsible for the uneasy development of power sharing between Moldova and its autonomous region of Gagauzia. Availability of international assistance during the turbulent periods of this development has been and will be crucial for its continuation.

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AUTONOMY AND CONFLICT RESOLUTION AUTONOMY: THE DANISH-GERMAN BORDER REGION Sten Harck 1. INTRODUCTION Traditional terms of autonomy do not apply to the Danish-German border region. The areas North and South of the border have no specific home ruling systems or autonomy comparable to those of the Faroe Islands or the province of South Tyrol/Alto Adige.1 Nevertheless, the three minorities in the region – the Danes and Frisians in South Schleswig (Germany) and the German minority in North Schleswig (Denmark) – have their own institutions, their own educational systems and their own associations. This ‘cultural autonomy’ is the key to the peaceful developments in the area, which often is described as a model for the solution of minority problems.2 In the following the main focus will be on legal aspects of the so-called ‘Danish-German model’. Germany and Denmark’s international and regional obligations concerning the protection of minorities will not be analysed here.3 After a brief introduction to the minorities living in the area, a historic overview will show how closely legal developments concerning minorities in Denmark and Germany are linked to the history of both states. Furthermore, the so-called minority constitution of the border area, the Bonn-Copenhagen Declarations from 1955, the constitutional guarantees in Denmark and Germany and specific legal aspects of minority protection in both countries will be discussed.

1

There is a vast amount of literature about different concepts of autonomy. A brief introduction to the ideas of autonomy and the related issues of self-determination of people can be found in Knut Ipsen’s Völkerrecht, § 30. 2 Prime Minister Poul Schlüter in his answer to the Danish Parliament from on 24 August 1990, S.1102, spalte 11783 and Jørgen Kühl, in The ‘schleswig Experience’ The National Minorities in the Danish-German Border Area, Aabenraa 1998. 3 Denmark and Germany have ratified the most recent multilateral treaties concerning the protection of minorities. Denmark ratified the European Framework Convention on the Protection of National Minorities on 22 September 1997 and Germany on 10 September 1997. Both countries have also ratified the European Charter for Regional and Minority Languages, Germany on 16 September 1998 and Denmark on 8 September 2000. For an analysis of the Danish implementation of the European Framework Convention on the Protection of National Minorities see Sten Harck, Fra model til virkelighed - Danmarks første rapport om mindretallenes rettigheder, pluk, nr. 1, Abbenraa 2000, p. 11 ff.

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STEN HARCK 2. THE SOCIAL BACKGROUND The Danish-German border region is home to three historic minorities. The German minority lives in the Southern part of Jutland, Denmark.4 According to the German minority between 15,000–20,000 people in the area are German. The minority has its own educational system with 17 private schools, among them basic schools and one high school, and 24 kindergartens. The German associations cover a wide range of activities from sport to music. Other institutions and organisations like German churches and the social service make sure that people belonging to the German minority can live in accordance with their German culture and identity. One daily newspaper, the Nordschleswiger, is published in German with a special focus on the activities of the minority. The party of the German minority, the Schleswigsche Partei, is represented in town councils and the county council.5 The Danish minority in Germany has about 50,000 members spread throughout the Northern part of the Land Schleswig-Holstein.6 The minority has its own educational system with 49 schools (among them one high school) and 57 kindergartens, religious communities, its own social service, sport clubs, cultural associations, its own theatre and a daily newspaper, Flensborg Avis.7 The party representing the minority, the Sydslesvigsk Vælgerforening, has had permanent representation in the parliament of Schleswig-Holstein since 1971.8 The north Frisian minority lives on the West coast of the Land SchleswigHolstein. Without cultural or economic help from a so-called kin-state the Frisian minority depends solely on its own resources. This is directly reflected in the minority’s structure. In one private school the language and some subjects are taught in Frisian.9 Public Schools in the county of North Friesland offer facultative language courses in Frisian. In some public and private kindergartens parents have taken an initiative to organise early language training in Frisian. The lack of language training during many years has resulted in that, among those 50,000– 60,000 people that feel affiliated with the minority, only 10,000–15,000 people are 4

In total 250,000 people are living in the county of Sønderjyllands Amt, which in German is called North Schleswig. 5 For a brief introduction to the lives of the German minority in Denmark see the leaflet ‘Nordschleswig und die deutsche Volksgruppe in Dänemark’ or visit the internet address <www.nordschleswig.dk>. 6 In Danish this area is called South Schleswig and consists of the countys of SchleswigFlensburg, North Frisland, the Northern part of Rendsburg-Eckernförde, a part of the city of Kiel and the city of Flensburg. In 2002 about 600,000 people were living in this area. 7 For further information about the Danes in South Sleswig see the leaflet ‘A Danish Minority outside Denmark The Danes in South Sleswig’ or the web-site <www.sydslesvigskforening.dk>. 8 The party was elected to the parliament in 1946 but lost its seats in 1954. From 1949 to 1953 Sydslesvigsk Vælgerforening was represented in the German Bundestag in Bonn. 9 This school belongs to the educational system of the Danish minority. This engagement in the activities of the Frisian minority reflects the fact that some people belonging to the Frisian minority also feel affiliated to the Danish minority.

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AUTONOMY: THE DANISH-GERMAN BORDER REGION able to speak Frisian. Most Frisian associations concentrate on cultural aspects of the minority. Only one youth group offers some sports activities.10 The main promoter of the Frisian interests in the area is the Nordfriiske Instituut in Bredstedt which fosters all aspects of the Frisian culture. Recently, the institute has published a Frisian hymnbook for church use. 3. THE HISTORICAL BACKGROUND Until the middle of the 19th century Danes, Germans and Frisians lived peacefully next to each other in the Duchy of Holstein, which, together with the Duchy, belonged to Denmark. In the aftermath of the July-revolution, which took place in Paris in 1830, the social position of the bourgeoisie was strengthened and this led to democratic reforms all over Europe. At the same time the awareness of the national identity increased. In the Danish-German border region a strong polarisation of the population into a Danish and a German group was observed. Families belonging to the Frisian minority were divided by their affinity for each of these groups. Seen from a legal point of view, the historic developments in Denmark and Germany are almost parallel. At the end of 1847 and the beginning of 1848 constitutions were drafted in both states. In both cases the underlying intention was to shape a nation state. The draft of the Danish constitution strengthened the legal connection between the Kingdom of Denmark and the Duchy of Schleswig. The aim of the so-called Pauls-Kirche-Verfassung for Germany was similar. The task of the Deutsche Nationalversammlung, which met in the Pauls-Kirche in Frankfurt, was to draft a constitution for all German states and thus to create one single German nation state.11 The fate of both constitutions were closely linked to each other. The German population in the Duchies of Schleswig and Holstein was against the separation of the two duchies and on 23 March 1848 an upheaval against the Danish government took place. The Paul-Kirche-Verfassung on the other hand never entered into force, since Prussia exceeded its credentials during the Danish-German peace talks in Malmø in August 1848. As a result of this, the meeting of the Deutsche Nationalversammlung was cancelled and the plan to create one single German nation state failed.12 In 1864 tensions between Prussia and Denmark increased and Denmark lost the Duchies of Schleswig and Holstein. In 1920, as a requirement of the Versailles Treaty, a referendum was held in the previous Duchy Schleswig to determine the national affinities of the people living in the area. The new borderline between Denmark and German was drawn on the basis of the outcome of this referendum. As a result Denmark had to integrate about 30,000 people that had voted in favour of Germany. Although Danish governments 10

For further information about the Frisian minority visit the web-site <www.friiske.de>. Eva Rimmele, Sprachenpolitik im Deutschen Kaiserreich vor 1914, Peter Lang Verlag, Frankfurt am Main 1996, p. 11. 12 Michael Salewski, Deutschland – Eine politische Geschichte, 2. Band, C.H. Beck’sche Verlagsbuchhandlung, München 1993, p. 55 et seq. 11

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STEN HARCK since 1864 had rejected the idea of special minority rights for the German speaking population, the Danish parliament adopted the necessary legislation in the aftermath of the referendum. The German minority was allowed to hold divine services in German and parents could freely decide whether their children should attend special language courses in German.13 On the German side, Prussia based its minority legislation on the idea that belonging to the Danish minority was determined by family ties or the ability to speak Danish. It is needless to say that the situation for the Danish minority in Germany changed drastically after 1933.14 At the end of World War II the tension in the Danish-German border region was high. In Denmark, the German minority was socially ignored because of the memories and resentment of the German occupation. During that time parts of the German minority had claimed a border revision in accordance with Hiltler’s ‘Heim ins Reich’ policy. After 1945 the Danish minority argued in favour of a change of the border to the South. At the same time many people without national or cultural ties to Denmark joined the Danish minority with the aim to seek protection and improve their living conditions. This created a highly negative atmosphere between the German and Danish population. The first attempts to solve the minority problems in the border region were initiated by the English occupational forces in 1949. However, an agreement on the minority situation in Denmark and Germany was only reached in 1955 when the Danish and German Parliaments signed the socalled Copenhagen-Bonn Declarations. These declarations are often called the ‘minority constitution of the Danish-German border region’.15 4. THE BONN-COPENHAGEN DECLARATIONS 4.1. Introduction In 1954 the party of the Danish minority, the Sydslesvigsk Vælgerforening, did not get enough votes and missed the threshold of five per cent required for representation in the local parliament, the Landtag, in Kiel.16 In Denmark the situation was different. Here the party of the German minority, Schleswigische Partei, held a seat in the Danish Parliament although only 9,271 people had voted in favour of the party.17 Both the Danish minority and the Danish Government in 13

Sten Harck, Nationale mindretal i europæisk perspektiv En analyse af Rammekonventionen om beskyttelse af nationale mindretal,Jurist- og Økonomforbundets Forlag, København 2000, p. 45 et seq. 14 About this see Robert Bohn, Uwe Danker and Jørgen Kühl (red.), Nationale mindretal i det dansk-tyske grænseland 1933−45, Institut for Grænseregionsforskning, Aabenraa 2001. 15 Cf. Jørgen Kühl in Andrea Teebken and Eva Maria Christiansen (eds.), Living Together: The Minorities in the German-Danish Border Regions, European Centre for Minority Issues, Flensburg 2001, p. 18. 16 Sydslesvigsk Vælgerforening received 42,242 votes. 17 In Denmark the threshold for a seat in the Danish parliament was − and still is − two percent.

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AUTONOMY: THE DANISH-GERMAN BORDER REGION Copenhagen addressed the different treatment of the minorities but neither the government in Kiel nor the government in Bonn wanted to discuss this issue. At the same time the western allied forces proposed that the Federal Republic of Germany should become a member of NATO. The Danish government declared that it could only accept German membership if the problems in the border region were solved.18 Chancellor Konrad Adenauer understood the signal and negotiations between the Danish government and the governments of Schleswig-Holstein and the federal government in Bonn were initiated. The Danish government peremptorily stated that it would not accept a bilateral treaty concerning the protection of the German minority in Denmark. The German delegation proposed a treaty guaranteeing both minorities certain rights. After a few months of hectic negotiations it was proposed that the two parliaments, the Danish Folketing and the Germany Bundestag, should approve two almost identical declarations concerning the German minority in Denmark and the Danish minority in Germany.19 These so-called Copenhagen-Bonn Declarations were signed by the Danish prime-minister H.C. Hansen and the German Chancellor Konrad Adenauer on the 29 March 1955 in Bonn. 4.2. The Content The Copenhagen-Bonn Declarations can be divided into two parts: the Copenhagen Declaration, which consists of a preamble and two sections and the Bonn Declaration which comprises of a preamble and three sections. They lay down the principles of the rights of the minorities and the treatment of the individuals belonging to the minorities.20 In the preamble of these unilateral declarations the two parliaments express their will to promote peaceful relations between the people living in the border region. Furthermore, both states refer to the principle of non-discrimination laid down in Article 14 of the European Convention on Human Rights. In this respect it is interesting to see the different wording in the two declarations. The Copenhagen Declaration refers ‘to Article 14 of the European Convention on Human rights, pursuant to which the rights and freedoms set forth in this Convention shall be secured without discrimination in respect of association with a national minority’. 18

In his speech at the meeting of the NATO Council in Paris the 22. October 1954 the foreign minister of Denmark, H.C. Andersen, directly linked the question of German membership in NATO to the solution of the minority problems at the Danish-German border. See Troels Fink, Forhandlingerne mellem Danmark og Tyskland i 1955 om de Slesvigske mindretal, Selskabet til udgivelse af Kilder til Dansk Historie, København 2001, p. 80. 19 The Copenhagen-Bonn Declarations are published in A. Teebken and E. M. Christiansen (eds.), Living Together: The Minorities in the German-Danish Border Regions, (European Centre for Minority Issues, Flensburg, 2001). 20 It should be emphasised that the Frisian minority is not covered by these declarations. The negligence of the Frisian minority during the negotiations between the governments in Denmark and Germany shows how important a so-called kin-state is for a minority.

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STEN HARCK The Bundestag used the following wording: ‘[The Government of the Federal Republic of Germany issues the following declaration] considering the obligation under international law into which the Federal Republic of Germany has entered by virtue of its association to the European Convention on Human Rights in respect of the obligation not to discriminate against national minorities (Article 14)’. Although both preambles refer to Article 14 of the ECHR, the German wording is broader and contains a general prohibition of discrimination against persons belonging to national minorities, while the Danish version is closely linked to the wording of Article 14 of the ECHR and thus only guarantees non-discrimination concerning the rights and freedoms set forth in the European Convention on Human Rights. In Section I the two Parliaments emphasise that persons belonging to either the German or the Danish minority − like every citizen of the two countries − enjoy all political and social human rights and freedoms. The declarations explicitly mention the right to inviolability of the liberty of the individual, equality before law, the right to freedom of faith and conscience, the freedom of expression, the freedom of assembly and association, the right to freely choose his occupation, inviolability of the home and the right to establish political parties. In addition to this, the declarations emphasise the right to fair and open elections, the right to access to court and the prohibition of discrimination based on the belonging to a national minority. Furthermore, the declaration guarantees every person belonging to the two minorities equal access to public offices according to his aptitude, qualifications and professional achievements. Section II of the Copenhagen Declaration and section II and III of the Bonn Declaration contain more specific minority rights. The most important principle laid down in the two declarations is that every person can freely decide whether or not he wants to belong to a minority and that this decision may not be verified by official authorities. Furthermore, the declarations guarantee that members of the minorities can speak the language of the minority. The use of the minority language in court and with official authorities depends on the relevant legislation in the states. According to the declarations the minorities are allowed to set up their own schools. The impact of this guarantee was that the German minority was allowed to establish its own school system again.21 After World War II the German schools in Denmark were closed and expropriated. Although the school system of the Danish minority was still intact after the fall of the national socialistic regime in 1945, the diplomas offered by the schools were not recognised by the state. This right was established by the legislator in Schleswig-Holstein in connection with the Bonn declaration.22 21

See the Danish Act on the private German schools no. 165 from the 24 May 1955. Cf. the additional declarations made by the Danish and German governments at the time of signature of the Copenhagen-Bonn declarations. These additional declarations are not part of the main declaration but contain e.g. the German governments commitment to adopt new legislation concerning Danish schools in Germany and the threshold for the elections to the Bundestag and the local parliament in the Land Schleswig-Holstein. The full text of the

22

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AUTONOMY: THE DANISH-GERMAN BORDER REGION Both declarations also address the question of the political work of the minorities. The declarations state that the political representatives of the minorities shall be involved in the work of political bodies. The role of the media is also emphasised, since both parliaments recommend that the (state) radio should take into account the special needs of the minorities. Furthermore, official public notifications should be published in the newspapers of the minorities. Due to the fact that the Danish minority in Germany is closely linked to Denmark regarding cultural and religious aspects and the German minority in Denmark is closely linked to Germany, the contact between the minorities and their respective kin-states is guaranteed. The minorities are also guaranteed equality when applying for public funds. 4.3. The Declarations as a Model In legal and historical analysis of the Copenhagen-Bonn Declarations it is often stated that the two declarations were a break through because the main principle of the documents is the individuals right to decide whether he belongs to a national minority or not.23 Although this principle is a landmark in the rights and protection of minorities, it dates back to the time between World War I and World War II. In the case Rights of Minorities in Upper Silesia (Minority Schools) from 1928 the Permanent Court of International Justice (PCIJ) had to decide in a dispute between Prussia and Poland.24 While Poland argued that belonging to a minority was ‘a question of fact and not one of intention’,25 Prussia defended the view, that ‘this question must be left to the subjective expression of the intention of the person concerned, and that this intention must be respected by the authorities even where it appears to be contrary to the actual state of facts’. This position was actually contrary to Prussia’s own legislation concerning the right of access to Danish schools in the Duchy of Schleswig. The PCIJ balanced the arguments and declared that a person could not freely decide to belong to a minority but that authorities according to the German-Polish treaty concerning the German population in Upper Silesia were not entitled to verify whether a person could be regarded as belonging to the German minority or not. As a result of this judgement, Prussia changed its laws concerning the Danish minority living in Schleswig. The new legislation was

additional declarations and the Copenhagen-Bonn Declarations are published in Bundesanzeiger no. 62 from the 31. March 1955, p. 4 et seq. 23 See e.g., Kühn who puts a special emphasis on the fact that the two declarations are based on a persons free will to decide to belong to a minority or not. Angelika Kühn, Priviligierung nationaler Minderheiten im Wahlrecht der Bundesrepublik Deutschland und SchleswigHolsteins, Peter Lang Verlag, Frankfurt am Main 1990, p. 323. 24 Rights of Minorities in Upper Silesia (Minority Schools), PCIJ, Series A, Judgment No. 12. 25 Cf. Rights of Minorities in Upper Silesia (Minority Schools), PCIJ, Series A, Judgment No. 12, p. 32.

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STEN HARCK based on the principle that a person could freely decide whether he/she belongs to a minority or not.26 Nevertheless, the Copenhagen-Bonn declarations from 1955 set a high standard concerning the protection of national minorities. Compared to the European Framework Convention on the Protection of National Minorities from 1995, the Copenhagen-Bonn Declarations show that the Danish and German delegations were very visionary. The multilateral treaty drafted by the Council of Europe forty years later only exceeds the Copenhagen-Bonn Declarations in two issues: it guarantees the right to learn the language of the minority and that every person belonging to a national minority has the right to be informed of the reason for his arrest or any accusations against him in the language of the minority.27 4.4. The Value of the Documents The two unilateral declarations were neither adopted as a bill in accordance with the constitutional rules in Denmark or Germany nor were the declarations ratified as a bilateral treaty between the two countries. The main reason why the negotiations between the two states did not result in a formal bilateral treaty was that the Danish side was strictly against a treaty with Germany.28 Hence, the two declarations are merely political statements adopted by the two parliaments without legal value.29 Nevertheless, in the Danish-German discussions regarding the protection of the two minorities the two declarations are often referred to as the Bill of Rights of the minorities in the Danish-German border region. Seen from a legal point of view, it should therefore be discussed whether the two declarations can be considered as international customary law. Custom is constituted by two main elements, a general practice by the states over a certain period and opinio juris.30 Denmark’s and Germany’s practice concerning the Copenhagen-Bonn Declarations can be found in several documents. As an immediate result of the two declarations in 1955 the Danish legislator amended the legislation on private schools and the parliament in Bonn changed the 26

Cf. the law on the Danish schools in Schleswig from 31 December 1928. Article I, no. 8 states that ‘unter dänischer Minderheit im Sinne der vorstehenden Bestimmungen werden diejenigen Volksteile des Reiches verstanden, die sich zum dänischen Volkstume bekennen. Das Bekenntnis zur Minderheit zu gehören, darf weder nachgeprüft noch bestritten werden’. Cited after Hugo Wintgens, Der völkerrechtliche Schutz der nationalen, sprachlichen und religiösen Minderheiten, Verlag W.Kohlhammer, Stuttgart 1930, p. 192 f. 27 In principle these rights correspond with the rights guaranteed in Article 5 and Article 6 of the European Convention on Human Rights. 28 Wolfgang Heusel, ‘Weiches Völkerrecht’, Baden-Baden 1991, Nomos Verlagsgesellschaft, p. 203 et seq. 29 Werner Thieme, Rechtsfragen der nationalen Minderheiten in der Bundesrepublic Deutschland, in: Festschrift für Karl Gottfried Hugelmann (Wilhelm Wegener, Hrsg.), Aalen 1959, Scientia Verlag, p. 644. 30 Cf. P. Malanczuk, Akehurst’s Modern Introduction to International Law (Routledge, 1997) p. 39 et seq.

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AUTONOMY: THE DANISH-GERMAN BORDER REGION Act on the election to the Bundestag. In the following years, and even in present days, both states frequently refer to the declaration as the basis of the protection and the rights of the national minorities in the border region.31 This indicates that the two governments act in accordance with the declarations. At the same time, it seems as if both governments feel that they are legally bound by the declarations (opinio juris). In a note to the Danish Parliament from 1990, the Danish Prime minister Poul Schlüter declared that ‘the rights of the minorities are based on the Copenhagen-Bonn Declarations from 1955 and the government believes that these declarations still are a substantial basis for the protection of the minority’s rights’. Furthermore, the prime minister said, that the German government ‘has expressed the view that by adopting the Bonn Declaration Germany has assumed a legal obligation that can only be amended or terminated after negotiations with Denmark. The legal status of the Copenhagen-Bonn Declarations in accordance with international public law will thus not be altered by the German unification’.32 It can thus be concluded that both governments act in accordance with the declarations because they feel legally bound to them. Although the declarations are neither a formal treaty between two countries nor a national law, it must be concluded that they are international customary law. 5. CONSTITUTIONAL GUARANTEES 5.1. Introduction Persons belonging to the Danish, Frisian or German minorities in the border area are – also – covered by the constitutional protection of human rights offered by the Danish Constitution, the Grundlov, and the German Constitution, the Grundgesetz. This protection guarantees that the minorities for example can establish their own associations and thus create their own frame to protect and develop their culture. 5.2. The Danish Constitution The Danish Constitution contains no specific minority clause.33 Nevertheless, minorities are indirectly protected through classical human rights, such as freedom 31

See e.g. the Danish Report to the Council of Europe on the implementation of the European Framework Convention on the Protection of National Minorities Article 18(1). According to the Danish government ‘[b]y these declarations the basis was laid for the safeguarding of the rights of the two minorities and for the future co-operation with regard to solving the problems of the minorities’. In the German Report to the Council of Europe it is stated that ‘the Bonn and Copenhagen Declarations of 1955 on the policy regarding minorities in the German-Danish border region provide the basis for the realisation of the protection of minorities along the lines defined in the Framework Convention’. Emphasised added. 32 See the note of Prime Minister Poul Schlüter from 24 August 1990, Folketings Tidende, sp. 11783. 33 The present Danish Constitution, the Grundlov, entered into force on 5 June 1953.

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STEN HARCK of expression and consciousness.34 Since freedom of expression is only effective if at least two people are present, the individual right of freedom of expression contains a collective dimension. A minority is thus indirectly protected through the individual. Traditionally, Section 70 of the Constitution is interpreted in such a way that it contains a prohibition of discrimination of people because of their religious belief or their origin. The Danish government, in its Report to the Council of Europe pursuant to Article 25 of the Framework Convention on the Protection of National Minorities, has emphasised that ‘[t]he German minority in Denmark is protected by the provision of section 70 of the Danish Constitution, according to which no person shall for reasons of his creed or descent be deprived of access to complete enjoyment of his civic and political rights”. 5.3. The constitutional protection in Germany 5.3.1. The Protection in the German Grundgesetz The German Constitution concentrates on the protection of the dignity of each person and a strong prohibition of any kind of discrimination.35 Seen from a historical point of view, the focus on the individual is not surprising due to the experiences during the Nazi-regime. On the other hand, the drafters of the German Constitution for the Federal Republic of Germany broke with a legal tradition, when they did not include any minority clauses in the Constitution. As mentioned, the Pauls-Kirche-Verfassung contained a constitutional protection of minorities and in Article 113 the WeimarConstitution from 1919 guaranteed that non German-speaking populations could develop their cultural habits and their language, that their language was equal to German in matters concerning religious affairs, the educational system, their internal administration and at court.36 It should be mentioned that the first Constitution of the German Democratic Republic contained a similar guarantee in Article 11.37 34

These are guaranteed in the chapter VII and VIII of the Danish Constitution. Article 1(1) of the German Constitution states that ‘Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt’. Article 3 of the Grundgesetz states that all people are equal before the law, that men and women are equal and that discrimination based on origin, languages, religion, etc. is prohibited. 36 The wording of Article 113 of the Constitution of the Republic of Weimar was the following: ‘Die fremdsprachigen Volksteile des Reiches dürfen durch die Gesetzgebung und Verwaltung nicht in ihrer freien, volkstümlichen Entwicklung, besonders nicht im Gebrauch ihrer Muttersprache beim Unterricht sowie bei der inneren Verwaltung und der Rechtspflege beeinträchtigt werden’. Cited from Rudolf Schuster, Deutsche Verfassungen, 20. Auflg., Goldmann Verlag, München 1992, p. 117. 37 Article 11 of the Constitution from 7 October 1949 of the German Democratic Republic says that ‘Die fremdsprachigen Volksteile der Republik sind durch die Gesetzgebung und der Verwaltung in ihrer freien volkstümlichen Entwicklung zu fördern; sie dürfen insbesondere am Gebrauch ihrer Muttersprache im Unterricht, in der inneren Verwaltung und in der 35

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AUTONOMY: THE DANISH-GERMAN BORDER REGION After German unification, the Constitution of the Federal Republic of Germany was amended. The draft for a new constitution included Article 20(b), which contained a provision protecting minorities. According to Article 20(b), the state should respect the identity of ethnic, cultural and linguistic minorities.38 The proposed article never entered into force, since conservative parties were afraid that the large amount of immigrants living in Germany would claim rights deriving from this article. 5.3.2. The Protection in Schleswig-Holstein Due to the federal structure of the Federal Republic of Germany, the competence to deal with certain issues belongs to the different Länder.39 Regarding minorities, it is worth mentioning that cultural issues are to be dealt with in each of the 15 German Länder. This is one of the explanations why several constitutions of the Länder contain articles guaranteeing minorities certain rights.40 The Constitution of Schleswig-Holstein guarantees national minorities and ethnic groups certain protection and help.41 Article 5(1) states that ‘[e]verybody is free to declare his/her affiliation with a national minority; this does not release people from their duties as citizens’. Article 5(2) stipulates that the cultural autonomy and political participation of all national minorities and ethnic groups is protected by the Land, local governments and local authority associations. It also contains the explicit provision that the national Danish minority and the Frisian ethnic group are entitled to protection and promotion. While Article 5(1) repeats one of the main principles of the minority protection in the Danish-German border region, the content of Article 5(2) implies that minorities have the right to claim support from the Land Schleswig-Holstein, counties and cities. On the other hand the wording of this subsection is so vague that no legal claim can be directly based on this article.42 The main value of this constitutional guarantee is that the local authorities and the Land Schleswig-Holstein are obliged to observe this provision. Furthermore, Article 5(2) gives guidelines for the interpretation of legal documents and for the draft of new legislation.43

Rechtspflege nicht gehindert werden’. Cited from Schuster, p. 294. Similar articles were incorporated in the Constitutions of the GDR from 1968 and 1974. 38 ‘Der Staat achtet die Identität der ethnischen, kulturellen und sprachlichen Minderheiten’. The draft of Article 20(b) is published in Bundestagsdrucksachen 360/92, Rn. 128. 39 See the German Constitution chapter VII. 40 See e.g., the constitutions of the Länder Sachsen and Brandenburg. In this Länder the slavic minority of the Sorbs is living. 41 The Constitution was adopted on 30 May 1990 and amended the previous Constitution from 1949. Article 5 of the previous Constitution was identical with Article 5(1) of the present Constitution. 42 Cf. Albert von Mutius, Horst Wuttke and Peter Hübner, Kommentar zur Landesverfassung Schleswig-Holstein, Kiel 1995, Walter G. Mühlau Verlag, p. 48. 43 Cf. Albert von Mutius, Horst Wuttke and Peter Hübner, p. 48.

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STEN HARCK According to Article 8(1) of the Constitution of Schleswig-Holstein a general obligation to compulsory school attendance exists in the state. However, parents might choose to send their children to a school belonging to a national minority, cf. Article 8 (4). 6. THE PROTECTION OF THE DANISH, FRISIAN AND GERMAN MINORITIES 6.1. Introduction Although constitutional guarantees are important for the protection of minorities, most aspects of daily life are regulated in acts below the constitutional level. Therefore it might be interesting to compare the legal situation of the minorities in Denmark and Germany concerning some specific issues. Due to the fact that the educational system provides minorities with the necessary language training and that the participation in the political systems of a country gives the opportunity to voice its problems, the legislation in these two areas will be discussed below. 6.2. The Right to own Schools A minority’s access to its own educational system and the possibility to teach and be taught in the language of the minority is crucial for the protection and the development of its cultural identity.44 In Denmark and Germany minorities have the possibility to establish their own schools. The most interesting issue relating to the school systems of the minorities is the constitutional approach to the question of education. The Constitution of the Federal Republic of Germany states in Article 7 that private schools can be established. The main focus is on schools with another religious background. As described above, the Constitution of the Land Schleswig-Holstein contains a provision on compulsory school attendance of children and that parents can choose to send their children to schools of minorities. The Danish educational system follows another approach, which has its roots in the Danish Constitution. According to Section 76 all children have the right to attend a school for free. If their parents are able to teach their children themselves at an appropriate level they are not obliged to send their children to public schools. This means that in Denmark there is no compulsory school attendance but a compulsory education. In Denmark this is reflected by the fact that the German minority established its schools in accordance with the general legislation on private schools. Private schools can be established if they meet certain criteria such as the legal organisation of the school, the constitutions of the administrative board or that a certain number of pupils must attend the classes on different levels. In the Act on free schools and private schools several general principles for the teaching and education of pupils are laid down. In private schools the main language of teaching 44

Cf. J.J. Lador-Lederer, International Group Protection, Leyden 1968, A.W. Sijthoff, p. 25.

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AUTONOMY: THE DANISH-GERMAN BORDER REGION is Danish and it is stated that the headmaster of the school must be able to read and write Danish. These kinds of provisions do not apply to the schools of the German minority in Denmark.45 Furthermore, the act guarantees that the schools of the German minorities get additional financial support. In Schleswig-Holstein the situation is a different one. Private schools are only allowed if the Ministerium for Education, Science, Research and Culture recognises a special pedagogical interest in establishing a private school or if parents want to establish a school with a certain religious background. However, Danish schools can be established if the minority wishes to do so.46 Concerning financial support from the Land Schleswig-Holstein the schools of the Danish minority are also given a special treatment. While private schools must be able to raise a certain amount of money by themselves, schools from the Danish minority are treated as normal public schools and are thus financed like any other public school.47 6.3. Political Aspects of a Minority As mentioned above, persons belonging to the Danish and Frisian minority in Germany and the German minority in Denmark are covered by the general human rights and freedoms set forth in the Danish and German Constitutions. The right to establish an association is the basic condition for a political party.48 While the Frisian minority does not have its own party representing its interests on a political level, both the Danish minority and the German minority have their own political organisations. Minorities are per se in a weaker position due to the fact that the majority of the population outnumbers them. With respect to the political aspects of society, the principle of majority implies that a minority will never be able to gain power or even manage to gain enough votes to be represented in a local parliament. With this problem in mind, states all over the world try to grant minorities certain privileges to ensure that they can be represented in political committees. In Germany, the Act on elections to the federal parliament, the Bundeswahlgesetz, and the Act on elections to the parliament of the Land Schleswig-Holstein, the Wahlgesetz für den Landtag von Schleswig-Holstein, guarantee the party of the Danish minority some special privileges. While the threshold for a mandate in the German Bundestag and the Parliament in Kiel, the Landtag, is five per cent of the votes, both acts explicitly state that the party of the

45 Cf. Lovbekendtgørelse no. 619 af lov om friskoler og private grundskoler m.v. from the 9 June 2002. 46 Cf. Section 58(4) of the Bekanntmachung der Neufassung des Schleswig-Holsteinischen Schulgesetzes (Schulgesetz - SchulG) from 2 August 1990. 47 See section 62 of the Schleswig-Holsteinische Schulgesetz. 48 Cf. Joachim Abr. Frowein and Roland Bank, The Participation of Minorities in DecisionMaking Processes, Council of Europe DH-MIN (2000)1, p. 4.

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STEN HARCK Danish minority is not required to meet this threshold.49 Nevertheless, this affirmative action towards the party of the Danish minority does not imply that the minority is automatically represented in one of the parliaments. The party has to gain a minimum of votes equal to the number of votes that corresponds to the last seat allocated in the parliament. Another special privilege of the party of the Danish minority is that once it has gained a seat in the Landtag of Schleswig-Holstein it is automatically recognised as ‘a faction’, whereas according to the Rules of procedure of the Landtag a normal party must consists of at least four members of the parliament before it gains the status of a faction.50 Besides additional financial help, this special political status includes the right to participate in all (sub)committees of the Landtag. This means that the (special) interests of the Danish minority are represented in all political committees. In Denmark, parties must gain at least two per cent of the votes to be represented in the parliament. Another possibility is to win the election in one of the counties and thus gain a direct seat in the Folketing. These preconditions also apply to the party of the German minority, the Schleswigsche Partei. The only privileges given to the party is that it does not have to meet the formal requirements for the registration ahead of an election to the Danish parliament.51 From the above, it is clear that the Danish and German minorities enjoy certain privileges regarding the elections to the national parliaments and the local parliament in the Land Schleswig-Holstein. If the parties representing the minorities choose to participate in elections in the local community or elections to the counties parliaments, the parties are treated equally to all other (Danish or German) parties.52 7. A EUROPEAN MODEL? Seen from a social point of view, the Danish-German border area is a successful model. After the referendum in 1920 until the middle of the fifties the minorities and majorities openly argued in favour of either a border change or the forced displacement of the minorities to their so-called kin-states – a kind of ethnic cleansing. People belonging to the minorities were openly discriminated against and the contact between the minority and the majority population was very limited. Today, official representatives of Germany, Denmark and the minorities emphasise 49 See section 6(6) of the Bundeswahlgesetz from the 3 December 2001 and section 3(1) the Landeswahlgesetz from the 7 October 1991. 50 Cf. section 1(2) of the Gesetz über die Rechtsstellung und Finanzierung der Fraktionen im Schleswig-Holsteinischen Landtag (FraktionsG) from 18. December 1994 and Section 22(1) and (4) of the Geschäftsordnung des Schleswig-Holsteinischen Landtages from the 23. April 1996. 51 Section 12(1) in Lov om valg til Folketinget, Lovbekendtgørelse no. 261 from the 18. April 2001. 52 The party of the Danish minority, Sydslesvigsk Vælgerforening, is actually represented with 161 members of city and county parliaments.

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AUTONOMY: THE DANISH-GERMAN BORDER REGION the good understanding and the important role of the minorities as an interface and bridge between the two countries. As pointed out by Kühl, it should be borne in mind that the social, political and economical conditions for the peaceful development of the border area have been very special.53 After World War II Denmark and Germany were interested in supporting ‘their’ minorities on the other side of the border and both states had the financial means to do so. Furthermore, the minorities and the majorities in the area share the same religious belief, the same history and there is hardly any social gap between people belonging to the minorities and people belonging to the majorities in the area. These preconditions are hardly mirrored by other parts of Europe or the World. If the experience between Denmark and Germany shows that minorities and majorities can live together without problems, undoubtedly it also shows that a peaceful settlement of conflicts between minorities and majorities takes time. This is often forgotten when conflicts in the former Republic of Yugoslavia or in parts of the former Soviet Union are addressed. Compared with the developments in other parts of Europe, the Danish-German border area can hardly be described as a legal model. The minorities in the area have only limited privileges and the basic document for the protection of the minorities is the Copenhagen-Bonn Declarations from 1955. Although they must be considered as constituting international customary law, they do not have the same impact as national laws or constitutional protections. In this respect, the protection of minorities in the German-Danish border region is weaker than the protection offered to the Sorbian minority in the Land Sachsen and the Land Brandenburg. In both Länder the Sorbian minority is protected by special Acts for the protection of the Sorbian minority.54 Despite the fact that the Danish and German minorities enjoy an enviable degree of protection, it should be pointed out that the Frisian minority has no special privileges. In fact, this minority has no legal remedies to claim rights that the German and Danish minority take for granted, such as schools where the language of instruction is the language of the minority (Frisian).

53 Cf. Jørgen Kühl, in The ‘schleswig Experience’ The National Minorities in the DanishGerman Border Area, Aabenraa 1998, p. 67, et seq. 54 See e.g., the Gesetz über die Rechte der Sorben im Freistaat Sachsen from 31 March 1999.

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CONTINUED CHALLENGES, POST-SETTLEMENT, TO THE CYPRUS CONUNDRUM Tim Potier 1. INTRODUCTION The past year has been a good one for the settlement of conflicts around the world. First, with constitutional accommodation in Macedonia (FYROM) between the ethnic Macedonian parliament and the ethnic Albanian opposition; by giving the Albanian minority greater constitutional guarantees and participatory rights1; and continuing with peace agreements in Angola2 and, most recently, the Democratic Republic of Congo.3 The Comoros Islands, beset by instability and coups since independence, have recently adopted a new constitution4 and conducted a range of presidential elections in this three-island archipelago, reflecting a novel and ingenious form of decentralisation/separation of powers. 5 What, increasingly, remains, however, are a range of disputes for which the nature of any ‘autonomy’ from central government looms large. In Sri Lanka, with peace talks just commenced between the government in Colombo and the Tamil Tiger rebels (from the north and east of the country) the latter, at the very least, still insist on some form of autonomy.6 The three trouble spots in the south Caucasus (Nagorno-Karabakh, Abkhazia and South Ossetia) still seem impermeable to a 1

The process has begun with the signing of a Framework Agreement, on 13 August 2001, in the Macedonian city of Ohrid. For text see: <www.ecmi.de/emap/mk_C04_03c.html# 01%20%20Constitution> The package of proposed constitutional reforms, outlined in the Framework Agreement, were approved by Macedonia’s parliament on 16 November 2001. For text of the amended constitution, see: <www.osce.org/odihr/elections/field_activities/ skopje2002/doc/mac_constitution.pdf.> 2 With the signing of a peace agreement between the Angolan government and UNITA rebels on 5 April 2002. The agreement includes a promise by the two sides to abide by a peace accord signed in Lusaka on 15 November 1994. For text see: <www.angola.org/ politics/p_lusaka.htm.> 3 A peace accord was signed between the President of the Democratic Republic of Congo, Joseph Kabila and President Paul Kagame of Rwanda on 30 July 2002. For text of the accord, see: 4 For text of the draft of the new federal constitution, plus the approved constitutions for Grand Comore, Mohéli and Anjouan (all in French), see: <www.comoresonline.com/accueilgb.htm.> 5 The new constitutions provide for each of the three islands to have its own president and greater autonomy within the renamed Union of the Comoros. Each island takes it in turn to elect a federal president (beginning with Grand Comore). 6 Chief negotiator for the Tamil Tigers at the Sittahip talks (Thailand), Anton Balasingham, on 18 September 2002, demanded that any such autonomy be ‘substantial’.

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TIM POTIER solution, despite recognition from the international community and the two de jure states (Azerbaijan and Georgia) that any outcome will involve a high-level of autonomy in their favour.7 The Polisario Front in Western Sahara continue to oppose any suggestion that the ‘region’ be attached, as an autonomous entity, to Morocco.8 Finally, news coming out of the island of Cyprus has been dominated, since January, by the ongoing bilateral talks between the Cypriot President and Turkish Cypriot leader, under the good offices of the UN special envoy to Cyprus, Alvaro de Soto, to arrive at a constitutional settlement to the division of the island that has baffled almost two generations.9 The above condition in international affairs, therefore provides a perfect opportunity in which to consider the extent to which autonomous processes of government can capably function in the modern and increasingly diffuse constitutionalized world, and to examine whether these autonomous processes can prove to be lasting, instead of acting as devices (possibly) to but delay a final solution for a future generation. For the past 57 years, since the creation of the United Nations system, international law has been dominated, quite understandably, by the pre-eminence of the nation state concept, the question of autonomy remaining to be decided only in those places where the nation state itself has, at least in some way, failed. To discuss the continued development of autonomous structures better, I will focus upon the case of Cyprus, assuming that a framework solution can be concluded in the weeks immediately following the completion of this article (I am hopeful). A settlement in Cyprus will suggest much for future accommodations in many of the above-mentioned trouble spots, but, as I shall explain, it will not settle the entire conundrum. 2. HISTORICAL BACKGROUND Cyprus has long been a popular destination for colonial powers(/aspirants), whether desired, fought over or bargained for. The list (from recorded history) is quite

7

See, for example: Nagorno-Karabakh (Baku, Bakinskiy Rabochiy, in Russian, 2 August 1997, p.1) (FBIS-SOV-97-237, 26 August 1997); Abkhazia (Interfax news agency, Moscow, in English, 1039 gmt, 27 October 1995) (BBC Monitoring SU/2446 F/2, 28 October 1995); (even, albeit with some reluctance) South Ossetia (Moscow, ITAR-TASS, in English, 1035 gmt, 11 March 1997) (FBIS-SOV-97-070, 14 March 1997). 8 UN special envoy, James Baker in a ‘Framework Agreement on the Status of Western Sahara’ has proposed that Western Sahara would have internal self-government, with the responsibility for the key sectors of phosphate mining and fishing. Morocco would control national security as well as foreign affairs and defence. Most controversially, there would be a referendum on the status of the territory within 5 years. Everyone having lived there for at least a year would be entitled to vote. That could include large numbers of Moroccans who, the Polisario Front fear, could sway the result. For text of the Framework Agreement, see: 9 Talks commenced on 21 January 2002.

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CONTINUED CHALLENGES, POST-SETTLEMENT, TO THE CYPRUS CONUNDRUM impressive: (beginning with) the Assyria10, Egypt11, Persia12, Ancient Greece13, Egypt (Ptolemaic)14, Roman15, Byzantine16, Lusignan17, Genoa18, Venice19, Ottoman and (concluding with, until 1960) Britain. The Cyprus Convention of 1878 between Britain and Turkey provided that Cyprus, while remaining under Turkish sovereignty, should be administered by the British government. However, with the outbreak of the First World War, in 1914, and Britain and Turkey fighting on opposite sides, London proclaimed the island annexed. Turkish recognition was guaranteed under the Treaty of Lausanne (24 July 1923) and regularised in 1925, when Cyprus was declared a crown colony. 20 The Greek Cypriot demand for enosis (union) with Greece and Turkish Cypriot opposition to it soured what might, otherwise, have been a relatively tranquil condition for the island. This was completely fractured, in 1955, with the institution of the EOKA (Ethnikí Orgánosis Kipriakoú Agónos) struggle of Greek Cypriots for union with Greece.21 With the Greek and Turkish governments, in Athens and Ankara, now involved, it was left for them to reach their own agreement, at Zurich, on 11th February 1959.22 On 19 February the British government, plus the Greek and Turkish Cypriot leadership, in London, accepted the Greek and Turkish compromise.23 This was ratified, in 1960, by treaties agreed to in Nicosia.24

10

Initially under Sargon II in 709 BC and continuing until 663 BC. Around 569 BC the Cypriot kingdoms recognised the pharaoh Ahmose II as their overlord. 12 Incorporated into the fifth satrapy of the Persian Empire in 522 BC, during the reign of Darius I. Remaining, largely, under Persian influence until the victory of Alexander the Great over Darius III at Issus in 333 BC. 13 Until the death of Alexander in 323 BC. 14 With the suppression of the kingdoms under Ptolemy I of Egypt. A process completed with the suicide of the King of Salamis, Nicocreon, in 310 BC. 15 Annexed by the Roman Empire in 58 BC and, along with Cilicia on the coast of Anatolia, made into a Roman province. 16 Following the division of the Roman Empire, 395 AD, Cyprus remained subject to the Eastern, or Byzantine Empire at Constantinople. 17 The island was sold by the Knights Templar to Guy de Lusignan, the King of Jerusalem, in 1192. Cyprus remained part of the Lusignan Kingdom until 1291, when, with the fall of Acre, the kingdom was extinguished. 18 Genoa seized Famagusta in 1373 and retained control over the city until 1464 when the Genoese were expelled by the last Frankish king, James II with the help of an Egyptian force. 19 The wife of King James II (Caterina, a noblewoman from Venice) was persuaded, in 1489, to cede Cyprus to the Venetian republic. Cyprus remained under Venetian suzerainty until the Ottoman Turkish capture of Nicosia in 1570 and in 1571, following a long siege, the fall of Famagusta (see Shakespeare’s play Othello). 20 At Articles 16 and 20. See also Article 21. For text see: <www.hri.org/docs/lausanne/ part1.html> 21 Commencing on 1 April. Today this date is commemorated by the public holiday ‘Cyprus National Day’. 22 For text see: <www.cyprus-conflict.net/Treaties%20-1959-60.htm> 23 Ibid. 11

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TIM POTIER Greece, Turkey and Britain guaranteed the independence, integrity and security of the republic25, and Greece and Turkey undertook to respect the areas remaining under British sovereignty.26 The Greek Cypriot leader, Archbishop Makarios became president and the Turkish Cypriot leader, Fazl Küçük vice president in elections held in December 1959. Decisions of the council of ministers would be binding on the president and vice-president, either of whom could, however, exercise a veto in matters relating to defence, security and foreign affairs.27 Turkish Cypriots were to represent 30 per cent of the civil service28, 40 per cent of the army29 and elect 30 per cent of the House of Representatives (the Cyprus legislature).30 A joint Greek and Turkish military headquarters was to be established.31 The republic came into being on 16 August 1960.32 Difficulties experienced in implementing some of the complicated provisions of the constitution, particularly over local government and finance, led Makarios, on 30 November 1963, to propose to Küçük 13 amendments.33 The Turkish government and the Turkish Cypriots rejected these and in the next month fighting broke out between the two Cypriot communities. As a result, the area controlled by the Turkish Cypriots was reduced to a few enclaves and Nicosia was divided by a ceasefire line, policed, to begin with, by British troops. On 4 March 1964, the UN Security Council agreed to send to Cyprus a multinational force known as the United Nations Peace-Keeping Force in Cyprus, or UNFICYP34: a force that remains deployed on the island up to the present day, periodically renewed, in further resolutions, by the Security Council.35 Inter-communal clashes continued. In 1967, an incident in the southeast of the island led to a Turkish ultimatum to Athens, backed by the threat of invasion. Makarios remained president and in 1973 his re-election went unopposed. However, 24

See Draft Treaty concerning the establishment of the Republic of Cyprus. For text see: <www.pio.gov.cy/cygov/constitution/appendix_a.htm> For list of other treaties signed on 16 August 1960, see: <www.mfa.gov.cy/mfa/mfa.nsf/6B2568057EAD4367C2256B6> 25 Treaty of Guarantee (Appendix B), Article II. For text see: <www.pio.gov.cy/cygov/ constitution/appendix_b.htm> 26 Ibid., Article III. 27 Constitution of the Republic of Cyprus (1960) (Appendix D, Part 3), Article 50. For text of the constitution, see: <www.pio.gov.cy/cygov/constitution/appendix_d.htm> 28 Ibid., (Appendix D, Part 7, Chapter 1), Article 123(1). 29 Ibid., (Appendix D, Part 8), Article 129(1). 30 Ibid., (Appendix D, Part 4), Article 62(2). 31 See particularly Article III of the Treaty of Alliance (Appendix C). For text see: <www.pio.gov.cy/cygov/constitution/appendix_c.htm> 32 Yet, interestingly, Cyprus independence day is celebrated on 1 October. 33 Known as the ‘13 Points’. For text see: <www.pio.gov.cy/docs/proposals/13points/ index.htm> 34 By resolution 186 (1964). For text see: 35 Most recently, on 13 June 2002, by Resolution 1416 (2002). For text see:

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CONTINUED CHALLENGES, POST-SETTLEMENT, TO THE CYPRUS CONUNDRUM a body of more nationalistically minded Greek Cypriots, opposed to President Makarios’ apparent satisfaction at the continued independence of Cyprus, had, in the meantime, resumed their struggle for enosis under a newly formed EOKA-B, in 1971. On 15 July 1974, a detachment of the Greek Cypriot, by then, National Guard, led by officers from mainland Greece, launched a coup aimed at assassinating Makarios and realising their plans for enosis. Makarios escaped, fleeing to London. A former EOKA member, Nikos Sampson, was proclaimed president of Cyprus. However, five days later, on 20 July 1974, Turkish forces landed at Kyrenia (on the north coast), with the expressed aim of overthrowing Sampson’s government. Despite fierce resistance, the Turks were successful in establishing a bridgehead around Kyrenia and linking it with the Turkish sector of Nicosia. Events were extended to Athens, with the fall of the Greek military junta, on 23 July, and its replacement with a democratic, civilian, government under Konstantinos Karamanlis.36 Back in Cyprus, Sampson was replaced by Glafcos Clerides (the president today of the Republic of Cyprus), who as president of the House of Representatives, automatically succeeded the head of state (Makarios) in his absence.37 The three guarantor powers, Britain, Greece and Turkey, as required by the Treaty of Guarantee, met for discussions in Geneva, but it proved impossible to halt the Turkish advance until 16 August, by which time Turkish forces had control of 37 per cent of the island. In December 1974, Makarios returned to resume the presidency. Earlier talks, between the Greek and Turkish Cypriots, had failed to agree to a bizonal federation (with a weak central government) proposed by the Turkish Cypriots. Talks were resumed, in Vienna, in 1975 and 1976 under UN auspices. On 12th February 1977, Makarios and Denktash agreed upon guidelines according to which Makarios could accept the principle of a bizonal federation.38 However, in August 1977 Makarios died at the age of 64. By the time normal elections were restored, in 1983, the Turkish Cypriots did not take part. On 15 November 1983, the Turkish Cypriot leader, Rauf Denktash, proclaimed the Turkish Republic of Northern Cyprus (TRNC) – to this day a ‘state’ recognised only by Turkey.39 Three days later, the UN Security Council, in a resolution,

36

The leaders of the ‘Glorious Revolution’ (as it was proclaimed by the junta’s three leaders) had seized power in a coup on 21 April 1967. 37 Constitution of the Republic of Cyprus (1960), see footnote 27, (Appendix D, Part 4) Article 72(3). 38 High-Level Agreement. For text see: <www.pio.gov.cy/docs/proposals/agreement 1977.htm> See also, Kyprianou-Denktash 10-Point Agreement of 19th May 1979. For text see: <www.pio.gov.cy/docs/proposals/agreement1979.htm> 39 Declaration of Independence by Turkish Cypriot Parliament. For text see: <www.trncinfo.com/TANITMADAIRESI/2002/ENGLISH/DOCUMENTS/7.htm>

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TIM POTIER condemned the move and repeated its demand, first made in 1974, for the withdrawal of all foreign troops from Cyprus – a demand that remains unheeded.40 Talks have continued periodically. In 1992, then UN Secretary-General, Boutros Boutros-Ghali presented, before the UN Security Council, the so-called Ghali Set of Ideas developing longstanding discussions on the prospect of forming a bizonal, bicommunal federation for the island.41 However, in 1993, Glafcos Clerides (leader of the right-wing DISY party) was elected president of the republic upon a platform of rejection of the Set of Ideas. The momentum for a peaceful settlement was lost. Broadly, little was achieved(/even discussed) until the commencement of the current talks, in January 2002. 3. DYNAMICS Any newly created or amended state needs to be configured by a constitution. The three significant states in the world without a constitution (the United Kingdom, New Zealand and Israel) may possess a certain longevity but I would not be surprised if, in the coming decades, even they ‘succumb’ to this most useful of legal ‘orders’/constructs. For the rest of the world, the matter of drafting a constitution is not even discussed, but, whenever necessary, assumed. A post-settlement state like Cyprus could depend upon either a single constitution defining the respective competences of the ‘federal’ government and ‘federated’ states or elect to draft, in its place, a framework constitution outlining the basic aspirations, guarantees for all citizens, internal constitutional settlement, functions of central government, amendment processes and international personality, complemented with respective and fuller state (with a small ‘s’) constitutions defining the specific structures/competences of the states. Either methodology is equally valid; the latter being effectively utilised in Bosnia and Herzegovina, upon the Dayton Accords.42 The matter of whether a (constitutional) text is to be consolidated into a single form or not need not be the important issue, what is central is that there is a common citizenship, that all citizens have equal rights before the law, that the respective competences of each structure are reduced from the primary text down (whatever form that text may take) and that the process for the amendment of the wider constitutional system is determined there also. In societies that have been the victim of hostility and enforced separation for some years, the matter of the head of state and his/her election can be a vital one. 40

Resolution 541 (1983). For text see: 41 Set of Ideas on an Overall Framework Agreement on Cyprus (1992). For text see: <www.pio.gov.cy/docs/un/ideas.htm> 42 Annex 4, Constitution of Bosnia and Herzegovina: <www.ohr.int/dpa/default. asp?content_id=372> For constitution of the Federation of Bosnia and Herzegovina, see: <www.ohr.int/const/bih-fed/default.asp?content_id=5907> For constitution of Republika Srpska, see: <www.ohr.int/const/rs/default.asp?content_id=5908>

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CONTINUED CHALLENGES, POST-SETTLEMENT, TO THE CYPRUS CONUNDRUM This is certainly true of Cyprus, whose ‘problem’ is compounded by the fact that today the ethnic make-up of the island still favours, overwhelmingly, the majority Greek Cypriot community.43 If the state that is to be created is to be conditioned upon the basis of equality, the opportunity should be enshrined for persons belonging to either of the main communities (in the case of Cyprus, the Greek and Turkish Cypriot communities), to assume the position of head of state, periodically and for a period. This can be achieved in a number of different ways, either by rotation within a parliamentary/presidential term or outside a term, with the communities taking it each in turn, in a way not unlike the manner in which the presidency of the European Union functions today (of course, though, that term subsists for only six months). To ensure continuity, it is important that the other community(/ies), in states such as these, can be represented either in a vice-presidential structure or through the operation of a committee of ministers. Otherwise, in its absence, a danger could be manifested by the creation of separate ‘delegations’, that while, quite constitutionally, taking their turn, would be sorely tempted to push through their own political/economic/developmental agenda at the expense of the other community/ies. The head of state need (maybe should) not be a sole, as far as the executive organs are concerned, symbol of constitutional unity. Even if a single will is to be reflected overwhelmingly on the international plane, within international organisations and amidst the formulation of foreign and trade policy, it is vital that a commonality of direction and a constitutional imperative to operate in concert is created. After all, the international system of states, however much they will become diluted by the processes of globalisation, still require a single source if the system is to remain workable – and, to date, it has been. It is not unusual, in many of today’s fractured states, for one of the protagonists to have an ethnically kin state across the border. Cyprus is unusual in that the border(s) is(/are) beyond the Mediterranean and, as indicated, it is a condition ‘enjoyed’ by both communities. The existence, internationally, of a kin state should not, necessarily, be a reason for regret, but it can, without question, complicate the establishment of a common identity. While common identities cannot be manufactured artificially (and even where they are they have little hope of longevity), an important device that can help (often, but admittedly not always) a society to come together, even emotionally, is through the conferring of a single citizenship. The world’s successful federations, whether loose or not (USA or Switzerland to cite two examples), have managed to create a sense of national identity, while also, with a democratic spirit, managing to maintain that vital 43 According to the CIA World Factbook, the population of Cyprus (in July 2001) was estimated at 762,000. For text see: <www.cia.gov/cia/publications/factbook/index.html> According to the last official census of the population of the Turkish Republic of Northern Cyprus (TRNC), in December 1996, the total population was 200,587 of whom 164,460 were TRNC citizens. A remaining 30,702 were classified as Turkish citizens. However, this latter figure is disputed and it is probable that a good percentage of those who are categorised as Turkish Cypriots are Turks from mainland Turkey who have been given TRNC citizenship.

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TIM POTIER element of regional pride (and there is no reason why this cannot assume an ethnic dimension also). The challenge for Cyprus, and others like it, therefore, will not be whether a single citizenship can be formulated (this is the easiest thing to do), but whether a spirit of singularity can be built where recent history has proved to be divergent and identity ethnically-dominated. We must never forget that a person’s pride and prejudice is much more subtle and unpredictable than words on a constitution. With a single citizenship comes a single international personality. The Turkish Cypriot leader, Rauf Denktash has, throughout 2002, propounded the need for the creation of a confederation of two sovereign, including his Turkish Republic of Northern Cyprus (TRNC), and internationally recognised states.44 Still, a single international personality can be reflected, in plural form, in a number of different ways. ‘Federated states’ may formulate/proselytise their own separate trade policy and relations. Cyprus, in this regard, has the added advantage of being an economy largely reliant upon tourism. So why, necessarily, should this be managed by the central authorities? Abroad, this separated policy may be reflected in separate trade delegations not only at international conferences (etc.) and also at the diplomatic level. This could further proceed to the establishment of (physically) separate trade missions.45 Even within the confines of an individual diplomatic mission, this could be easily reflected by the establishment of separate departments, albeit operating under an individual ambassadorial head. It must be admitted, however, that it may be difficult to construct mechanisms for the independent representation of the ‘federated’ states within international trading/credit organisations (World Trade Organisation and International Monetary Fund etc.). A single foreign policy need not be at the expense of the construction of firm processes of trans-frontier cooperation. The past fifteen years has seen, certainly within the European Union (and also, but in a slightly different vein, the Council of Europe), much emphasis on the promotion of regionalism.46 The collapse and succeeding wars of/within the former Yugoslavia are a tragic testament of failure to build such when imposed from the top down (the USSR also). Matters other than Cyprus divide two of the major countries of the eastern Mediterranean, Greece and Turkey. Still, there is no reason why countries like Cyprus cannot provide lessons 44

See, for example: <www.trncgov.com/cyprusissue_background9.htm>. Consider the operation of the Treaty of the Russian Federation and the Republic of Tatarstan On the Demarcation of Areas of Responsibility and the Mutual Delegation of Powers Between the Organs of State Power of the Russian Federation and the Organs of State Power of the Republic of Tatarstan, particularly Article 2(11) and (13). For Russian text see: <www.tatar.ru/append20.html>. 46 Within the European Union, the establishment of the Committee of the Regions by the Maastricht Treaty of 1991. <www.cor.eu.int/home.htm>. Also, in the Treaty, the introduction of the notion of subsidiarity. In 1994, the Council of Europe established the Congress of Local and Regional Authorities of Europe (CLRAE) as a consultative body to replace the former Standing Conference of Local and Regional Authorities. Website: <www.coe.fr/cplre/indexe.htm>. 45

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CONTINUED CHALLENGES, POST-SETTLEMENT, TO THE CYPRUS CONUNDRUM concerning the creation of sensibilities of regionalism and trans-frontier cooperation between nations. In Cyprus, such can be reflected by demilitarisation coupled with the declaration, even by the United Nations, of a status of permanent neutrality.47 This need not, for the security and peace of mind of the respective communities, be at the expense of the continued presence of, largely symbolic, detachments from the Greek and Turkish military.48 On a cultural level, television and radio (below its analogue and digital satellite form) can continue to broadcast channels of the kin states and be, itself, further enhanced by the invitation/performance of dramatical/musical works (not only professional) to come and perform on the island. A single, federal, Ministry of Culture could promote and even subsidise the holding of respective performances and festivals to reflect, in each ‘federated’ state, the cultural riches and diversity of the other community. While language and blood may still tie, the union of two important world cultures sharing together their rich heritage on a single, compact and popular island could provide a new focus for international celebration. The federation of Belgium provides the classic constitutional form/outcome for a country of this type’s capital: the city of Brussels forming the separate and third region beyond the administrative confines of the Flemish Region and Wallonia. For a country like Cyprus, with its capital Nicosia (European spelling49) having been divided for nearly forty years and with the respective parts of the city ethnically divided (if not physically) before even then, a problem is created. A capital for Cyprus would surely wish to be symbolised by more than just the Ledra Palace Hotel50, Nicosia International Airport51 or the federal ministries, their departments and offices as defined by the constitution. There is absolutely no reason why a country cannot have more than one capital, de jure as well as de facto, even if these capitals (effectively) do form but different elements of the same physical and conjoined entity. As just indicated, it is not unusual (and increasingly) for countries to be divided between a political and financial centre. The two most recent examples, Nigeria and Kazakhstan, provide further testimony to the very workability of such.52 Admittedly these do operate in a de facto manner, but there is surely nothing to prevent a country like Cyprus deciding, if only for administrative convenience, to reflect its ethnic duality in a novel and perhaps unique constitutional form. Besides, why should any, de jure, 47

Consider, for example, UN General Assembly Resolution 50/80 of 12 December 1995, recognising the status of permanent neutrality declared by Turkmenistan. For text of resolution, see: <www.un.org/documents/ga/res/50/a50r080.htm>. 48 Consider earlier Treaty of Alliance, see footnote 31, particularly Additional Protocol no.I, paragraph I. 49 Lefkosia in Greek, Lefkoúa in Turkish. 50 Site of the UN headquarters. It is located in the buffer zone, in central Nicosia. 51 Closed since 1974. Also today lying in the buffer zone, in north-west Nicosia. 52 Nigeria – Abuja (since December 1991), Lagos for economic/commercial (and former capital). Kazakhstan – Astana (since December 1998), Almaty for economic/commercial (and former capital).

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TIM POTIER administrative separation, frustrate the reality, de facto, of a single presence to the wider world. Rather lazily, we have become dependent on singular forms and the need to proceed from a de facto condition up to a de jure one. This is ironic if one considers the enormous efforts undertaken by (individual) governments to reflect their nation before the international community, in plural form, when hosting international conferences/symposia. In societies that have been broken, sometimes for decades, by conflict, the temptation is often to pour for an undue period, and not infrequently (ultimately) without success, on the division of governmental competence within the state. Too much negotiation time, during the past decade, has been lost by the failure to recognise that agreement can be initial and that, perhaps, some degree of extended/continued separation (of some competences) can actually, in the interim, be advantageous. At no point, of course, does this ever prevent the respective communities from establishing stronger centripetal processes, structures and competences in later years. We are accustomed to regard the ‘half empty glass’ pessimistically and to assume that autonomy or (con)federalisation can only, inevitably, lead to secession/divorce, when there is absolutely no reason why a sense of common community and will should not become stronger. While the US Constitution has proved to be remarkably resilient and enduring53, in reality, nothing may ever be so and, thus, we should avoid attempting to end history by our own impatience/selfimportance. Cyprus, like so many other societies that will have to wrestle with these very nightmares during the coming decade, should not be inhibited/qualified by dogmatism and expectation. One of the most controversial elements of policy that can often be devolved to an autonomous body, or such like, is education. Determination of the teaching of the state language(s), history (of the country, not infrequently recently drafted) and the type of education (on occasions) concerning the history of the ethnic group that may have been awarded the autonomy concerned – even if that history includes, effectively, the history also of another, even neighbouring, state – can be a cause of conflict. Cyprus will be presented with similar difficulties. Even if central authorities define the framework of educational standards, curricula and examination, uniform textbooks, in the Greek and Turkish languages, will have to be drafted. The outcome, usually in such situations, is a general avoidance of certain material/events, emphasis on periods/symbols (frequently) of little interest to either community and the constant fear that while the books themselves may be ‘satisfactory’, that it does not prevent any individual instructor from filling in the ‘gaps’ according to their own style/will. For example, those in the (mainly) Greek Cypriot state would wish to emphasise, in the teaching of Cypriot history, the invasion of Turkish troops on 20 July 1974 and subsequent ‘partitioning’ of the island. They would not wish to remind their students of the events of the 15th, even if advised by any central education commission that they should and how they 53

With only 27 amendments in its 215 year history, since its adoption on 17 September 1787.

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CONTINUED CHALLENGES, POST-SETTLEMENT, TO THE CYPRUS CONUNDRUM should tackle the issue. By contrast, in the (mainly) Turkish Cypriot state, I have no doubt that there would be a refusal on the part of the authorities to allow any reference to the events of the 20th as an invasion; perhaps even preferring to refer to that day as the day of Turkish Cypriot ‘liberation’. Language will also be a matter for concern. One must assume that the existing condition of having two official languages de jure (if not currently de facto) will be retained. Nearly forty years of division and the fact that the respective communities (overwhelmingly) have no other means to communicate with each other, other than through use of the English language, will not necessarily result in English becoming a third official language (although it may; or even that it may become the sole, island-wide, official language). Irrespective of outcomes, there can be little doubt that the English language will remain the language of ‘federal’ government business/inter-’federated’ state communication for some years to come. While important meetings, at the ‘federal’ level, within the civil service or amongst senior civil servants, may proceed with the assistance of interpreters, for more mundane business reliance will be placed on English. Promotion of learning the other community’s language (even if official only at the level of the respective ‘federated’ state), for each type/class of civil servant and senior (probably mainly managerial) public sector workers, may be an aspiration (over a period) and could, surely, be realised within a short space of time. However, it will be very difficult to encourage those who refuse to speak the other community’s language to do so (even if qualification to work in the relevant sector of government or promotion is made dependent on knowledge of the other language). For some, this will become a matter of principle and the source for considerable tension. Neither community will wish to have its own language relegated to second (or last) place. Turkish Cypriots, from the outset, will fear that their language will be subjected to such pressure and, unfortunately, some Greek Cypriots (however welleducated) will expect their Turkish Cypriot colleagues/equivalents to communicate to them in Greek. In education, the teaching of the other community’s language will be no less controversial. One would hope that both languages would be compulsory on the school curriculum. The Greek and Turkish Cypriot education systems are currently full and the teaching of the other community’s language, even to current students, will entail something (/some things), in the curriculum, having to give way. Perhaps less stress could be placed on the English language, but if the two communities are to be largely independent of each other and the wounds, from decades of division, prove slow to heal, there is a danger that school-leavers could find it difficult to communicate with each other in any language. While one can expect the English language to play a slightly less dominant role in the curriculum, as has been gathered, it will have to have some role. This may necessitate reduced concentration on other (equally) vital subjects: (for example) geography, mathematics and history (although some might see reduced concentration on the latter as an unstated blessing). What, also, of religious studies, which would, once more, have to accommodate instruction about the faith of the 483

TIM POTIER other community (at least to a far greater extent). One simple way of avoiding upsetting the curriculum to an undue level could be to increase the (daily) hours of retention into the afternoon. However, this will prove extremely difficult on an island where the teaching unions (indeed any union/interest group come to that) remain strong and during recent decades have become accustomed, not infrequently through some form of ‘blockade’, to guaranteeing that it is the government, rather than them, that makes the compromises. At the very least, the teaching profession would demand sizeable compensation and it could be predicted that many would leave the profession. In normal circumstances, in other European countries, despite some discomfort, such could usually be absorbed, but this could prove difficult in Cyprus, a country with a low population (island-wide), high student population, village (not urban) mentality/expectation, virtually non-existent unemployment rate, high private-sector average incomes and overwhelming preponderance of women in the profession – it is popular for women (frequently with young families) precisely because they are finished by lunchtime. Teaching of the other community’s language would be conducted, preferably, by qualified teachers from the other ethnic group. Would this become a requirement? If so, I suspect it would be very difficult to find teachers, particularly from the Greek Cypriot community, willing to teach in the Turkish Cypriot state. While distances, by European standards, are small in Cyprus, the population is unused to commuting up to one/one-and-a-half hours per day. Would it not, therefore, be difficult to persuade Greek Cypriot teachers to travel, daily, from the Greek Cypriot state to the Karpasia peninsula (north-east of the island), for example? Further, albeit in reverse, the distances for Turkish Cypriot teachers having to commute to the south-west of the island, coupled with the absence of good road communications (the topography of the island will always frustrate even engineering on this matter also), would be so prohibitive as to (I have little doubt) guarantee that those teachers would, with their families, have to move to the Greek Cypriot state. Or would the central authorities settle with the teaching of the other community’s language by teachers from their respective communities? This would be costly, but not impossible. The facility could be provided for language teachers, in each state, to undergo language training (for defined periods during the year) in the other (‘federated’) state and/or (additionally) Greece and Turkey. Yet, this would not resolve the problems that will be presented during the years of transition. Some matters will only be solved with much scratching of heads. State symbols may be hardly noticed in many Western European countries, indeed in some countries their over-display is disapproved of by a significant percentage of the population. However, this view is not reciprocated in the eastern Mediterranean (or shall I say, in this context, South-Eastern Europe). These are still lands, in Europe, where flags, anthems, hymns and patriotic songs continue to form/illustrate a vital part of one’s identity. Although this condition may not be preferred and, I have no doubt, the exigencies of European Union membership will, 484

CONTINUED CHALLENGES, POST-SETTLEMENT, TO THE CYPRUS CONUNDRUM in due course, temper such sensibilities, such will still take some time to dampen and not, also, without fierce resistance. One of the least controversial aspects of autonomy, within the negotiation process ongoing in the breakaway ‘republics’ of the former Soviet Union, is the right to display/represent individual ‘symbols’. Officials in Baku (Azerbaijan), Tbilisi (Georgia) and Chisinau (Moldova) have no problem confirming (within certain limits, of course) manifestation of traditional/new symbols. Such may be problematic in Cyprus, however. Concerning the Cyprus’s flag, it is famous for being the only standard, of a country in the world, with an image of the country itself superimposed (onto a plain white background). I have no idea whether this flag will be sufficiently binding upon the psychology of the Greek and Turkish Cypriot people to survive any postsettlement accommodation. Even if it isn’t, diplomats, through their good offices, should be able to help ‘draft’ something as ‘colourful’, yet, possibly, as meaningless as the flag of Bosnia and Herzegovina (fortunately for the Greek Cypriots, it is unlikely that the Turkish Cypriots would insist on the traditionally Islamic reflecting and potentially fractious green, or moon and stars). Problems, however, will arise if it is decided to allow a separate flag for each ‘federated’ state. Normally, such should not cause complications. Unfortunately, one cannot doubt that emotionally, if not actually, the two communities would continue to insist on the displaying of the Greek (state) and Turkish (state) flags. Expect any artificial (even national) construct, however much of a hybrid of the Greek and Turkish flags, to be rejected. (Worryingly, I cannot think of designs that could invoke pride for each community and how could the local authorities police the displaying of the ‘traditional’ flags? Expect them not to want to or bother). Once again, flags could become a potent symbol of one’s loyalty/patriotism to something in Cyprus, thus perpetuating divisions within each community. I, thus, advise Cyprus have a single flag representing the country as a whole: while recognising, on trust, the enormous leap in faith that such would require from all. Similar problems will be presented in selecting the country’s national anthem; I would hope that state coats of arms/representations on awards would be sufficiently inconspicuous (to the wider population) as to not provoke too much argument. The problem in selecting a national anthem is compounded by the fact that the national anthem of the Republic of Cyprus has, since independence, been the national anthem of Greece. In addition, the Turkish Cypriot authorities have become accustomed to using the Turkish national anthem. Cyprus’s ‘first’ flag, as has been noted, was ‘different’, but for the Greek Cypriot community denial of the Greek national anthem will, inevitably, provoke considerable antagonism and, I suspect, words or no, silence/rejection. The Greek Cypriots were, as so many former colonial subjects were, rightly proud of the independence they fought for and won (in 1960), but it will take years for them to accept any new and different anthem. Under normal circumstances an autonomy, even one that has significant policy competences devolved down to it, would be expected to retain the currency of the wider state. Within very loose con/federalised structures, the possibility remains for 485

TIM POTIER the country itself to legalise the establishment of(/circulate) more than one currency. This, of course, does not come without its consequences, in respect of the printing of notes and coinage (even regionally), allocation of reserves, the management of debts and the very circulation of the currency; but it is not an impossibility. For Cyprus, however, the prospect of early acceptance/assumption of the Euro, following accession to the European Union, will alleviate the potential for disagreement. In the meantime, and hopefully this will be an abbreviated meantime, the Cyprus pound, the official currency of the Republic of Cyprus, and the Turkish Lira (the ‘official’ currency used by the authorities in the north) should operate, respectively, in both ‘federated’ states. I do not envisage that the transitional provisions, within any framework settlement, will be completed before the Euro is adopted as the (countrywide) currency of Cyprus. A constitutional settlement will, inevitably, affect the de facto division of the island that has subsisted, virtually unaltered, since the second Turkish military push of August 1974.54 I do not wish to speculate on individual towns and villages, but it is likely that the bulk of the re-adjustment will occur in the south-eastern parts of the island. For those unable to return, the prospect of monetary compensation awaits; it is unlikely that they will be able to elect to live under the administration of the other community even if they are willing to (or, at the very least, that any such resettlement, would, for some time, be anything more than limited). Again, I do not wish to speculate on what will be very important (and sensitive) details. A more interesting dynamic, however, concerns the right to freedom of movement between the two ‘federated’ states, even for those not displaced. For example, would a Greek Cypriot resident of Nicosia be able to establish a business/office and, therefore, provide services in the Turkish Cypriot ‘federated’ state? Cyprus would have acceded to the European Union with a single international personality and admitted, into its legislation, an acquis communautaire that would enshrine the four freedoms (goods, services, persons and capital) for Cyprus as between all other member states. However, it is likely that, at least initially, Cyprus would be subject to special arrangements restricting the right of free movement of persons and establishment/services. These special and transitional arrangements will provide vital breathing space for an island that, in its initial post-settlement years, will administratively and emotionally be preoccupied with return and reconstruction. After a period, these restrictions are likely to be relaxed – although it might be some time, if ever, before all of them will be completely removed. A Cyprus settlement, however, will be conditioned upon some significant ‘compromise’ and approval from Ankara (Turkish Nicosia also). Amidst the brinkmanship that is modern international diplomacy, it is likely that Turkey will have demanded a definite timetable for accession to the European Union, despite the fact (as I am writing this) that the country has still failed to meet the Copenhagen criteria, themselves a vital prerequisite for candidate status – possibly a two-stage 54 Only, in June 2000, a 400-metre advancement by Turkish troops at Strovilia, a pocket of land between the British Sovereign Base Area of Dhekelia and the north. The move put nine Greek Cypriots within Turkish-controlled territory.

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CONTINUED CHALLENGES, POST-SETTLEMENT, TO THE CYPRUS CONUNDRUM timetable could be offered.55 When Turkey, finally, does accede to the European Union – probably before the end of the current decade (even this will probably be the product of political factors) – the matter as to whether free movement of persons and establishment/services will be, from the outset, unencumbered vis-à-vis Cyprus, or be subject, itself, to further transitional measures, will have to be determined. If so, this will be, almost certainly, on account of a desire(/need?) to retain the ethnic balance on the island, as a matter of Community policy, which, in order to retain, could force Brussels to limiting also these rights vis-à-vis Cyprus and Greece. This would be something that would be introduced subsequently, the early years of Cyprus’s membership freed from such strictures, and that could cause considerable political difficulties for the Greek Cypriot representatives/authorities. Yet, I do not envisage the Turks accepting anything less – if they accept it at all. 4. CONCLUSION This is an awkward moment to be writing an article about any possible constitutional settlement and accommodation in Cyprus. At the time of writing, so much appears to remain to be decided. So we will probably have seen some nailbiting weeks in the run-up to the European Council in Copenhagen, in December, by the time you read this. Of course, one can never be certain of outcomes, but, if there is to be a solution (finally), the issues that I have raised above will certainly be at the forefront of attention. As I have suggested, a solution to the Cyprus problem will take many years to bed down and, indeed, complete outcomes cannot even be identified with any type of agreement today (whether in 2002 or 2003). Yet, if only the island can shake off the baggage of half a century, it has a very bright future ahead of it. As always, only time will tell if the respective leaderships, both onshore and offshore, can grasp the basic point that Cyprus will remain, in their own styles, both Greek and Turkish and that Cyprus can do so much to contribute to a wider peace in the eastern Mediterranean and Aegean. It is certainly long overdue.

55

See: <www.eiropainfo.lv/infocentrs/doki/4eng4.doc>.

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STRATEGIES OF ETHNIC CONFLICT RESOLUTION: THE TRENTINOSOUTH TYROL CASE AND THE BALKANS Paolo Foradori and Riccardo Scartezzini In this paper, we will look at the possible exportability of the successful example of ethnic pacification of Trentino-South Tyrol into the troubled areas of the Balkans, and in particular of the former Yugoslavia. We will try to answer the question of whether the model (methods, strategies and policies) that guarantees the peaceful coexistence of three different ethnic groups in Trentino-South Tyrol could be applied to other cases or, alternatively, whether the Northern Italian case has proven to be a success only thanks to specific and non-reproducible conditions which could hardly be replicated in different geopolitical and historical circumstances.1 Taking for granted that the history and the main terms of the Trentino-South Tyrol model are known to the audience, we will first look at the current relevance and topicality of this model by arguing that this type of ethnic accommodation is the most effective and therefore preferable for resolving most ethnic conflicts currently underway in the world. Indeed, it seems that starting from the mid-nineties this model has been, mutatis mutandis, already largely applied world-wide and has brought about numerous examples of successful ethnic conflict prevention, containment, management and resolution. In the second part of this paper, we maintain that the Trentino-South Tyrol solution may constitute – in theory – a good paradigm of pacification for the Balkans. However, in the third part, we will argue that – in practise – this desirable 1

From a methodological point of view, it should be noted that: first, our approach to the issue concerned here is a socio-political one. For instance, we will not enter into matters that pertain the sphere of the jurists. Instead, we will specifically and exclusively look at the circumstances and conditions of socio-political nature that facilitate or constrain the replication of the Trentino-South Tyrol model into other cases. Secondly, it is important to point out that it is extremely difficult to make any work of comparisons within the Balkan context due to its mutability and volatility: what indeed may seem right today, may soon turn utterly wrong in the completely changed circumstances of tomorrow. Thirdly, the Balkans are a vast and varied geopolitical region which include many internal situations that are in many respects hardly comparable: it was therefore inevitable to resort to some generalisations. Fourthly, it is important to note that what we may consider the best policy for a certain ethnic issue may turn into a total fiasco due to the fact that is was implemented incorrectly. It is not the simple problem of political and ideological wishful thinking of what ought to be versus what actually is. Rather, and more subtly, it is the dilemma between what may be considered the most suitable and legitimate solution from a normative point of view and what, on the other hand, is the most feasible and workable solution in a given specific and concrete context. Within this dilemma, we have striven to strike a fair balance between these two options but we have certainly given preference to considerations that, although may be normatively not the best ones, are however the most ‘realistic’ and politically ‘practicable’ in the Balkans of today.

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PAOLO FORADORI AND RICCARDO SCARTEZZINI exportability may be unworkable and unfeasible due to reasons and a set of circumstances which are attributable both to the peculiarity of the Balkan context and the historical specificity of the Trentino-South Tyrol case. Although the Trentino-South Tyrol model and the principles and techniques on which it is based maintain an indisputable value as an ideal paradigm for further applications, we conclude that the current state of affairs in the Balkans is not suitable or ripe for a model of ethnic accommodation so complex, sophisticated and costly. In our view, the ethnic situation of the Balkans and its many intractable issues are doomed to remain problematic and not durably solvable, at least in the foreseeable future. We will begin with what we have called the topicality of the Trentino-South Tyrol model of ethnic conflict settlement. By topicality, we mean that the policies and mechanisms of ethnic pacification – which were elaborated back in the midforties and then implemented throughout the second half of the century up until now in Trentino-South Tyrol – could be seen as the precursors of successful policies and mechanisms which make up what is the present new regime of accommodation of ethnic and minority relations in heterogeneous states. Contrary to conventional wisdom that ethnic and nationalistic fighting is still on the rise, a deeper analysis clearly shows that the rash of ethnic warfare peaked in the early 1990s to decline soon after in most of the world. Despite significant exceptions such as Kosovo, East Timor and Rwanda, there seems to be a general shift from ethnic confrontation toward ethnic accommodation, as is proven from the sharp decline in new ethnic wars, the settlement of many old ones and the proactive efforts by states and international organisations to recognise group rights and channel ethnic disputes into conventional politics. The studies of Ted Robert Gurr and his Minorities at Risk Project provide evidence of this current global strategy, or regime, to contain ethnic conflict whose essential principles are: a) threats to divide a country should be managed by devolution of state power and granting to national peoples and minorities rights to exercise some autonomy within the existing state; b) communal fighting about access to the state’s power and resources should be restrained by recognising group rights and sharing power; that is, the active protection of minority and group rights in terms of freedom from discrimination based on race, national origin, language and religion.2 In essence, this regime consists of minority rights and autonomy, which are the two main pillars that the Trentino-South Tyrol system is based on. That is to say, a system of ‘internal self-determination’ whereby self-government is arranged in such a way as to satisfy the legitimate desire of a minority to have its rights protected by concessions of a considerable amount of control over its own administration without challenging the sovereignty and integrity of the state. 2 T. R. Gurr, Peoples Versus States: Minority at Risk in the New Century, (United States Institute of Peace Press, 2000). For a summary of these findings, see T .R. Gurr, ‘Ethnic Warfare on the Wane’, May/June Foreign Affairs (2000) pp. 52–64.

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STRATEGIES OF ETHNIC CONFLICT RESOLUTION Statistical evidence substantiates the coming into existence of this global strategy.3 For instance, between 1993 and the beginning of 2000, the number of wars based on self-determination has been halved. During the 1990s, 16 separatist wars were settled by negotiated peace agreements, and ten others were checked by ceasefires and ongoing negotiations. Fewer separatist wars are being fought today (around 18) than at any other time since the early 1970s. Two-thirds of all new campaigns of protest and rebellion since 1985 began between 1989 and 1993; few have started since. Given the decline in the number of new ethnically based protest campaigns – from a global average of ten per year in the late 1980s to four since 1995 – the chances of potential future rebellions are statistically on the wane. An even more important indicator is the balance between escalation and de-escalation: of the 59 armed ethnic conflicts under way in early 1999, 23 were de-escalating, 29 were remaining constant, and only seven were escalating. Again, according to Gurr, discrimination eased for more that a third of the groups monitored by the Minorities at Risk Project between 1990 and 1995, mainly because ‘governments formally recognised and guaranteed their political and cultural rights’.4 With regard to the right to autonomy and self-governance, the new regime predicates that disputes over self-determination are best settled by negotiation and mutual accommodation that normally end in concessions of forms of autonomy within the existing state. Evidence shows that the most recent ethnic confrontations began with demands for complete independence and ended in a compromise for ‘internal self-determination’, that is – again – larger autonomy within the existing state, as in the Trentino-South Tyrol model. This sort of compromise is now becoming the rule of ethnic resolution for a number of reasons. Firstly, this trend has a lot to do with the democratisation of many authoritarian regimes in Europe, Asia and Latin America. Secondly, nationalists determined to fight for the maximalist goal of total independence, such as the Chechen rebels, are more and more rare. Thirdly, there is a growing pressure by the international community – and in particular by Western countries and major international organisations such as the UN, OSCE, EU but also the OAU and other regional bodies – not only to promote democratic regimes but also to demand solutions which satisfy both the principle of self-determination and the principle calling for the respect and integrity of existing international borders.5 Fourthly, many central governments have realised that it is cheaper to sit around a table and 3

The following data come from the Minorities at Risk Project which has analysed situations and trends of some 300 politically active ethnic groups over half a century. See Gurr, supra note 2. 4 T. R. Gurr, Ethnic Warfare on the Wane, supra note 2, p. 54. 5 See in particular the standards and guidelines of the Organisation for Security and Cooperation in Europe (and especially the OSCE’s 1990 Copenhagen Document and the socalled Lund Recommendations) as well as the Council of Europe’s Framework Convention for the Protection of National Minorities of 1994. All these documents prohibit forced assimilation and population transfers, endorse autonomy for minority within the existing states and advocate the treatment of minority rights violations as international matters.

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PAOLO FORADORI AND RICCARDO SCARTEZZINI negotiate an agreement of power devolution than getting entangled in endless and costly fights with the insurgent forces. It goes without saying that the above-described regime is not fully developed yet and will never be perfect. There will always be numerous cases that will not fit the pattern as well as actors that will never accept its norms and values. We will always find instances of ethnic conflicts, which will remain intractable due to their own specific characteristics. Moreover, there is no guarantee that we will continue to move in this direction. However, the trend is there and the Trentino-South Tyrol model seems to have anticipated its main features and principles. Given this general overview, in the next section we explain the reasons why the above pattern of ethnic reconciliation is also desirable in the Balkan context. However, and despite this desirability, in the final part of the paper we reach the conclusion that the present conditions in the Balkans are so complex and intractable that it is almost impossible for this model to work in that part of the world. The first reason of this desirability is banal but not obvious. The reason is that if we exclude, for reasons of moral principles, all the coercive and violent methods of settling an ethnic dispute (from genocide to ethnic cleansing, to forced population transfers), the range of peaceful remedies along the spectrum (from assimilation to secession) become limited.6 Indeed, as we will see, the circumstances in the Balkans suggest that neither assimilation nor secession/independence are currently viable options. Therefore, almost by necessity, we have to search for alternatives in terms of ‘internal self-determination’ strategies within the existing states. In this respect, it is the specific ethno-geography of the Balkans that firstly calls for a solution that resembles the Trentino-South Tyrol model. Indeed, given the still highly complex and intermingled character of its ethnic distribution, the region would hardly bear other territorial partitions or population transfers. After a decade of acute ethnic warfare, further border alterations could disastrously destabilise the entire region by the vicious circle generated by border revisions that, in turn, create new minorities out of the old majorities within the new political entity. As the history of the Balkans teaches us, attempts to carve monoethnic states out of multi-ethnic contexts almost inevitably leads to violence and illiberal regimes. Although we tend not to see any automatism of possible ‘domino effects’ in the Balkans, it is however reasonable to think that such a complex ethnogeography would cause a cascade of infra and inter-regional consequences as a result of any modification to ethnic lines and national boundaries. For instance, it is 6

Chaim Kaufmann for instance contemplates the resort to coercive remedies. This author contends that, to save lives threatened by genocide and ethnic cleansing, the international community should in some circumstances facilitate population movements to create genuine ethnic and national homelands (C. Kaufmann, ‘Possible and Impossible Solutions to Ethnic Civil Wars’, in M. E. Brown, (ed.), Nationalism and Ethnic Conflict (MIT Press, Cambridge, Mass., 1997) pp. 265–305. See also the radical positions put forward by Edward Luttwak who advocates a sort of laissez-faire by international community so that power politics and definitive war outcomes could lead to durable ethnic settlements (E. Luttwak, Give War a Chance, July/August Foreign Affairs (1999) pp. 36–45).

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STRATEGIES OF ETHNIC CONFLICT RESOLUTION very likely that if political independence is granted to Kosovo, equal demands for greater autonomy – if not independence or pan-Albanian unification – will soon multiplied in the Albanian minority of Macedonia. General geopolitical considerations and pressure by many international interests at stake in the region are also working in the direction of solutions of ‘internal selfdetermination’. For example, again in the entangled Macedonia case, the moment the Albanians should obtain independence, Bulgarians, Serbs and Greeks soon too will put forward similar demands for further territorial partitions. Similarly, but on another level, other important international actors have interests in not having further ‘external self-determinations’. This is for instance the case of Russia, which disfavours new border revisions both because of its own geopolitical interests and alliance systems in the region, and also because of its determination not to set other precedents that may internationally justify independent claims by its own internal minority groups. By and large, Western countries also dislike ‘external selfdetermination’ strategies that, in their eyes, may help destabilise the Balkan region, while they are seeking to create the right conditions for its stability. Further territorial partitions are also complicated by the fact that the Balkan region has already been significantly constricted. In other words, what was ‘losable’ and ‘dividable’ got indeed lost and divided in the course of the last decade. Further modifications would be extremely difficult and costly. To exemplify, there will not be any Serbian leadership that could easily accept the separation of Kosovo. Given the historical highly symbolic value of Kosovo in the Serbian collective imaginary, only forms of autonomy and self-government arrangements within the existing boundaries seem possible and politically realistic to meet the demands of the Albanian minority. A final element, that seems to discourage solutions other that those similar to the Trentino-South Tyrol model, refers to the doubts as to the ‘capacity of statehood’ – especially in terms of economic and political sustainability – of many of these would-be independent entities. This is for example the case of a possible Albanian Kosovo, of a Muslim state in the Sandjank, and probably the case of Montenegro itself.7 To conclude this first part, if further secessions are neither easy nor desirable in the Balkans and assimilation, on the other hand, appears also highly improbable due the continued sense of dividedness, suspicion and distrust, if not hatred, among the different Balkan ethnic groups, by necessity we need to seek solutions in the middle ground of the not-so-vast spectrum of possibilities of multi-ethnic diversity coexistence and integration.8 In this respect, the solution of the Trentino-South Tyrol based on ‘internal self-determination’ may constitute a model for ethnic resolution in the Balkans. In consideration of what has been said so far, this model appears to be a fairly good mechanism to guarantee the effective protection of minority rights 7

See S. Böckler and R. Grisenti, Lo Statuto di Autonomia del Trentino-Alto Adige: un modello di pacificazione etnica per l’area centrale danubiana (Franco Angeli, Milano, 1996) p. 76. 8 This point will be analysed in detail in the next paragraphs.

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PAOLO FORADORI AND RICCARDO SCARTEZZINI and identities and, at the same time, to reconcile claims for self-determination with a vested interest in preserving the territorial integrity of existing states. Given this theoretical exportability, in the next paragraphs we will assess the actual viability of applying this model to the current Balkan state of affairs. The cleavage between what is desirable and what is workable appears very wide and there are many problems and concrete obstacles that have hindered a possible replication of the Trentino-South Tyrolean experience. Indeed, the Balkan ethnic identities and polarisations have become so hardened that intractable security dilemmas make it almost impossible to restore a workable system of peaceful multiethnic coexistence in those war-torn societies. Our starting point is that the ‘internal self-determination’ model is the most sophisticated, costly and complex of all possible strategies of ethnic accommodation. Although it is normatively highly desirable – as an optimum synthesis between the principles of self-determination and of state border integrity – and seemingly capable of producing positive outcomes (as in Trentino-South Tyrol), its complexity and ‘sophistication’ make its application difficult to implement and preserve. Such a system is based on a very elaborated (and for this, perhaps, fragile) juridical system which designs a highly intricate ‘ethnic contract’ that specify rights and responsibilities of both ethnic minorities and majorities. To take root and develop safely, this model necessitates very responsible majority and minority leaderships as well as a propitious climate of mutual (and ideally genuine) trust between the competing ethnic groups. The model’s workability is also very much dependent upon the availability of sufficient economical resources, due to its high costs of start-up and maintenance. Finally, the model is bound to fail unless there is a very favourable international political and economical environment.9 Unfortunately, all these conditions and circumstances – which existed and still exist in the Trentino-South Tyrol case – seem to be absent or inadequate in the present Balkan context. To grasp the relevance of the above conditionality for a possible exportability of the model, it might be important to start from the definition of what an ethnic conflict is. Given that definition, the many constraints hindering any attempt at duplication will become more evident. Of the many definitions, we prefer David Lake and Donald Rothchild’s definition.10 For the two authors, ethnic conflict is most often the result of ‘collective fears of the future’, which are driven by group fears about their safety, security 9

For a view on the Trentino-South Tyrol international collocation and its relationship with Austria after the Package’s closure, see R. Scartezzini, La collocazione del Trentino-Alto Adige di fronte ai mutamenti e alle prospettive di nuovi scenari internazionali, in Regione Trentino Alto Adige, A cinquant’anni dall’Accordo De Gasperi-Gruber, (Atti del Convegno, Castel Mareccio, Bolzano, 11−12 giungo 1993) pp. 245–258. 10 D. Lake and D. Rothchild, Containing Fear: The Origins and Management of Ethnic Conflict, in M.E. Brown (ed.), supra note 6, pp. 97–132. See also D. Lake and D. Rothchild, The International Spread of Ethnic Conflict (Princeton University Press, 1998).

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STRATEGIES OF ETHNIC CONFLICT RESOLUTION dilemmas, information failures, and the polarizing actions of ethnic activities and political opportunities. More analytically, ‘most ethnic groups, most of the time, pursue their interests peacefully through established political channels. But when ethnicity is linked with acute social uncertainty, a history of conflict, and fear of what the future might bring, it emerges as one of the major fault lines along which societies fracture. Vesna Pesic, a professor at the University of Belgrade and peace activist in the former Yugoslavia, says it well: ethnic conflict is 11 caused by the fear of the future, lived through the past’.

This situation creates problems of credible commitment among the competing ethnic groups; that is, at least one group cannot effectively reassure the other that it will not renege on an agreement and exploit it at some future date. Again, at least one group cannot credibly commit itself to uphold the so-called ‘ethnic contract’ which designs formal and informal norms and rules which safeguard the existence of an ethnic group in relation to the others (mutual rights and responsibilities, political privileges and access to resources of each group). Similarly, the above creates ‘information failures’ whereby the reality is oversimplified and distorted through past interpreting mechanisms and each intention of the opposing ethnic group is read in a negative and bad-faith fashion.12 This almost inevitably leads to what might be called the ‘inter-ethnic security dilemma’, where one group cannot achieve physical security without diminishing the physical security of the other groups; in a spiral of distrust, hostility and the proliferation of weapons, one or more disputing parties have incentives to resort to a pre-emptive use of force and – as in a vicious circle – fearful that the other might in turn pre-empt, a group has further incentives to strike first and negotiate later.13 In this scenario, and building on these fears and dilemmas, ethnic activists and political entrepreneurs of each group grow stronger and by so doing polarise the society. The incentives to play the ‘ethnic card’ become more attractive as well as the incentives to attack pre-emptively when one still has competitive advantages over the opposing group. If the above description of an ethnic conflict rightly reflects the structural causes and psychological mechanisms that lead ethnic groups to fight each other, then it seems rather difficult to create conditions that could bring ethnic pacification in the Balkans. In that ethnic and geopolitical environment, ‘inter-ethnic security dilemmas’ remain irresolvable, commitments to uphold ‘ethnic contracts’ are not credible and fears seem not containable.14 The difficulties in exporting the Trentino-South Tyrol model can be further highlighted by looking at the remote and proximate factors that cause violent ethnic 11

D. Lake and D. Rothchild, in M. E. Brown (ed.), supra note 6, p. 99. Ibid., p. 105. 13 B. R. Posen, ‘The Security Dilemma and Ethnic Conflict’, 35:1 Survival (1993) pp. 27–47. 14 Nowadays, a partial, artificial and not self-sustainable interethnic peace can be maintained only thanks to international forces. 12

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PAOLO FORADORI AND RICCARDO SCARTEZZINI conflicts.15 In the following paragraphs, this set of factors will be analysed and put in perspective by taking into account the historical contexts and the internal and international constraints to both the Trentino-South Tyrol and Balkan cases. If we first consider the cultural and perceptual elements of ethnic rivalries (patterns of cultural discrimination and problematic group histories), the Balkan case appears extremely problematic and difficult to resolve.16 The entire region is living with the heavy burden of a terrible past of crimes and gross violations of human rights, committed by each group against the other (and that each attributes to the other). Conversely, in Trentino-South Tyrol we cannot find cruelties of such magnitude and intensity.17 As Stephen Van Evera reminds us in his study of ‘hypernationalism’, the degree of harmony or conflict between intermingled nationalities depends partly on the size of the past sufferings. The rule is: the greater the past crimes, the greater the current conflict and the more difficult any attempt at conflict pacification. In the Balkans, these horrors are still vivid and fresh in the memories of people, with no prospect of easy forgiveness.18 Memories of past sufferings complicate conflict pacification by intensifying the diaspora-annexing character of the groups (on a ‘never again’ vow), by creating collective guilt syndromes (in opposition to individual responsibility), by spurring past victims to commit equivalent crimes against old tormentors who now happen to live among them as minorities or against these minorities’ home countries. In such a distorted reality, it is impossible to build infra-national loyalties or credible commitments to uphold mutually beneficial ‘ethnic contracts’ to guarantee minority rights. In addition, to an extent which is not comparable with the TrentinoSouth Tyrol case, the Balkans and especially the regions of the former Yugoslavia live on malign ethnic and national mythologies which increase mistrust and hostility. Balkan national mythologies are particularly pernicious because rival groups often have mirror images of each other as well as mutually exclusive and self-justifying perceptions. This is, for instance, the case of Serbs versus Croats and Albanian Kosovars versus Serbs.19 15 See Michael E. Brown, ‘The Causes of Internal Conflict: An Overview’, in M. E. Brown, (ed.), supra note 6, pp. 3–26. 16 It goes without saying that we reject the simplistic ‘ancient hatreds’ explanation to ethnic unrest. The above cultural and perceptual factors are just some of the many elements that predispose a certain context to violence and whose activation is indeed the result of a mix of causes. 17 For example, the South-Tyrolean terrorist attacks of the fifties and sixties caused material damages but virtually no casualties. 18 Memories are key, since the dangers of past crimes are also a function of whether these crimes are remembered by the victims and whether the victims can attach responsibility for the crimes to groups that are still present. See S. Van Evera, ‘Hypotheses on Nationalism and War’, in M. E. Brown, (ed.),supra note 6, p. 45. 19 Serbs identify themselves as heroic defenders of Europe and Croats as fascist and genociders. On the contrary, Croats see themselves as victims of Serbia’s hegemonic aggression.

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STRATEGIES OF ETHNIC CONFLICT RESOLUTION This chauvinist and self-glorifying mythmaking, compounded with historical distortions and sheer propaganda, tragically contribute to a climate of mutual suspicion and information/knowledge failure with long term devastating effects on any possible attempt at peaceful coexistence between the various ethnic groups. If resentment and spirit of revenge are still prevailing in the Balkans, good will towards ethnic pacification dominated among all the concerned parties in the Trentino-South Tyrol case (i.e. the three ethnic groups of the Region and the central governments of Austria and Italy). Indeed, the history of Trentino-South Tyrol autonomy and ethnic accommodation began at the end of a devastating world war that in those two countries did not leave much room for anything but earnest attempts at peace and ethnic pacification. When De Gasperi and Gruber signed the Paris Agreement of 1946 both Austria and Italy, losing parties of World War II, inherited a bad reputation and had to pay for the actions of their past regimes. They could not possibly refuse to try their best to peacefully solve their ethnic dispute in order to regain international respect and forgiveness. In addition, the first years of the postWorld War II period were generally rich in good intentions and ideal dispositions by the new democracies. In general they were keen to perform well and in accordance with the principles of peaceful settlements of disputes as espoused from the freshly signed Charter of the United Nations. In essence, many internal and international forces pressured all parties to play fair and seek forms of compromise on middle positions. It is also quite inappropriate to make any kind of comparison between the symbolic value of South Tyrol in the Italian and Austrian nationalist ideology and, for instance, the extremely high value that the territory of Kosovo has in the Serb collective imagination. Compromise in ethnic negotiation is much more difficult in a situation where the interests at stake are perceived to be so vital as in the case of Kosovo.20 Contrary to what happened in the Balkans, the absence of religious differences also helped a great deal to ease the tension in Trentino-South Tyrol and avoid escalation into violence. To sum up, Balkan ethnic groups are currently too polarised to create a durable system of internal autonomies that could eliminate the perception that any given form of autonomy will not successively be used by dominant ethnic groups in the autonomous areas to discriminate against others or to aim at total independence. Moreover, there are reasons to believe that such a polarised society may not positively adapt to a system of large but closed autonomy similar to the one in force in Trentino-South Tyrol. Such a system, based more on duplication and separation than integration, may be conducive to further polarisation and strengthen the minority’s sense of uniqueness and difference in its relations with the majority.21 20

Indeed, even for irredentists such as Cesare Battisti the annexation of South Tyrol at the end of the First World War was not only an injustice but also a political error. 21 This is indeed the major weak point of the Trentino-South Tyrol model that its critics like to point out. Similarly, critics emphasise the lack of flexibility of the model that in the long

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PAOLO FORADORI AND RICCARDO SCARTEZZINI There is also a concrete risk that an increased divisiveness caused by autonomy concessions may in the long run lead to more demanding political platforms towards total independence.22 The literature rightly stresses the role of domestic elites as a major catalytic factor in triggering ethnic conflicts.23 Elites are also decisive when it comes to ethnic management and resolution. Their role is a variable of their democratic legitimacy and personal political profile. In this respect, the difference between Trentino-South Tyrol and the Balkans is striking. In the former case, negotiations, agreements and implementation of ethnic pacification policies were carried out by statesmen of high calibre with longsighted political visions. De Gasperi and Maniago are just two examples of policy-makers of this sort. Quite the opposite is the case in the Balkans, where many leaders are politically weak, untalented and almost exclusively concentrated on a fierce and short-sighted struggle for political (if not physical) survival within a very limited span of time and within a very limited political horizon.24 Moreover, most Balkan leaders do not have strong political legitimacy. More specifically, they lack strong and genuine25 democratic legitimacy. Sooner or later, this weakness will bring to the surface their political vulnerability, which they might then try to compensate for by resorting to the so-called ‘communal card’.26 Though the Austrian and Italian democracies of the post WWII period were also young and fragile, they were however strongly backed (and guided) by the Allied Nations and international organisations (ONU, CEE, etc.), which greatly helped to protect and strengthen their recently established democratic institutions and codes of conduct.27 Everything considered, it is indeed the presence of solid democratic

run may crystallise ethnic and cultural diversities hindering possibilities of contact and exchange. 22 For example, the vast concessions to the ethnic Albanians of the 1970s did not produce a long-term containment of the conflict in Kosovo. Instead they fostered their national conscience and opened wider the distance between them and the Serbs. See S. Böckler and R. Grisenti, supra note 7, p. 66. 23 Donald Horowitz, Ethnic Groups in Conflict (University of California Press, Berkley, 1985). 24 The same normally applies to their respective domestic oppositions. See for instance the inconclusive role of the political oppositions to Milosevic during all the 1990s. 25 ‘Genuine’ democratic legitimisation stands for not a simply ‘formal’ and ‘procedural’ democratic legitimisation. 26 With the aim of surviving a legitimacy crisis, elites strive to maintain their political positions by means of propagandistic manipulation of public opinions. The cheapest and easiest way is the appeal to nationalistic sentiments, which infuse the nation (or the ethnic group) with a sense of in-group patriotism and out-group rivalry. See, Human Rights Watch, Slaughter Among Neighbours: The Political Origins of Communal Violence (Yale University Press, New Haven, Conn., 1995). 27 It should be considered that very often it is precisely in the early years of the process of democratisation that young democratic regimes, without proper backing, are more vulnerable

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STRATEGIES OF ETHNIC CONFLICT RESOLUTION institutions that determines the success of any ethnic conflict resolution policy. By definition, only in democratic regimes all persons – regardless of ethnicity, language and religion – will have equal rights to freely express and pursue their legitimate interests and aspirations. The democratic deficit in the Balkans is also compounded by an overall institution deficit as a legacy of the communist collapse which has left the country not only ideologically orphaned (and as a consequence more easily manipulatable in nationalistic terms) but also without valid institutions and praxis for managing new conflicting interests of the post communism era. When state structures weaken and there are no legitimate political institutions to exercise meaningful control over the territory placed under their nominal supervision, power struggles between politicians and would-be leaders intensify. Ethnic groups, which are being oppressed by the centre, become more able to assert themselves politically, while criminal groups become more powerful and contribute to the erosion of the state’s legitimate monopoly on violence. Rule of law and state institutions become meaningless. In weak states, individual ethnic groups feel compelled to provide for their own defence in a spiral of suspicion and arms race. Meanwhile, ethnic propagandists and political entrepreneurs get stronger and polarise the society.28 Strictly linked to this problem is the issue regarding the different conceptions of nationalism that Trentino-South Tyrol and the Balkans refer to: civic nationalism versus ethnic nationalism. The latter type of nationalism predominates in the Balkans and in East-Central Europe, whereas the former is prevalent in Western countries. According to Jack Snyder, ‘civic nationalism normally appears in well institutionalised democracies. Ethnic nationalism, in contrast, appears spontaneously when an institutional vacuum occurs. By its nature, nationalism based on equal and universal citizenship rights within a territory depends on a supporting framework of laws to guarantee those rights, as well as effective institutions to allow citizens to give voice to their views. Ethnic nationalism, in contrast, depends not on institutions, but on culture. Therefore, ethnic nationalism is the default option: it predominates when institutions collapse, when existing institutions are not fulfilling people’s basic needs, and when satisfactory alternative structures are not readily 29 available’.

Eastern European nationalism, which found its foundations in the political culture of philosophers of history such as Herder and von Schlözer, is based on a ‘biological’ to setbacks, ‘ethnic card’ manipulations and war-proneness. See J. L. Snyder, From Voting to Violence: Democratisation and Nationalist Conflict (Princeton University Press, 2000). 28 M. E. Brown, supra note 15, p. 6. 29 J. L. Snyder, ‘Nationalism and the Crisis of the Post-Soviet State’, 34:1 Survival (1993) p. 26.

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PAOLO FORADORI AND RICCARDO SCARTEZZINI concept of nation and citizenship. This approach, in contrast with the ‘voluntary’ character of Western nationalism, magnifies the specificity of the group as a given which cannot accept external contamination. The malign character of the Eastern European nationalism is intensified by popular ideas of ‘mission’, ‘personal sacrifice’ and political mythologies which have often created destructive and selfdestructive ethnic relations. Within this cultural context, it has found deep roots in a special and inseparable relationship between the concepts of ‘nation’ and ‘territory’, which has forged the political culture of Balkan ethnic majorities. Minority issues are therefore regarded as perpetual sources of instability in an endless call for selfdetermination in ethnic homogenous nation-states. Nationalism has thus turned from a movement of cultural renaissance and emancipation into a form of domination of one state over another and, within state borders, into the supremacy and exploitation of the ethnic majority over the ethnic minorities.30 Considering now some of the structural factors causing ethnic conflict, the Balkan ethnic demography appears certainly more problematic than that of TrentinoSouth Tyrolean. For example, the different birth rates between Serbs and Albanians in Kosovo make the ‘ethnic balance’ of that region very unstable. In the same vain, a greater difference in birth-rates between urban and rural populations (which tends to reflect a diverse distribution of population along ethnic lines) and the open issue of the return of refugees and internally displaced persons will contribute to limiting the possibility of addressing ethnic problems once and for all. An aggravating element, in terms of exportability, concerns the total size of the minority population in proportion to the majority. For example, in the case of Macedonia, the Albanian ethic group constitutes around 25 per cent of the total population in contrast to the South Tyrolean German minority which makes up 0.5 per cent of the total population of Italy. Given the numerical relevance of the Albanian minority, any policy of ‘internal self-determination’ in Macedonia should also be reflected at the level of state government, with nation-wide ethnic policies of power-sharing and minority rights similar to those implemented at the regional level (i.e. ethnic proportion, use of language, proportional representation, rotation and so on). Of course, the transposition of ‘internal self-determination’ policies from a local level to a national one is a much more complex and, in this respect, the TrentinoSouth Tyrol Autonomy Statute cannot be of any advice.31 Finally, the importance of favourable economic circumstances should not be underplayed. These economic considerations again shed light on the difference between the two cases. Indeed, there is no doubt that economic prosperity in Trentino-South Tyrol has played a crucial role in containing resentment and softening ethnic animosity. Similarly, there is no doubt that Trentino-South Tyrol’s autonomy has generated considerable costs in order to be preserved. Unfortunately, and despite the efforts of the international community, the Balkan present and future economic situation does not appear to be positive at all. This inevitably endangers possible agreements of ethnic 30 S. Bianchini and G. Schoepflin, Le minoranze dell’Europa orientale fra storia e politica, unpublished paper (1993). 31 See S. Böckler and R. Grisenti, supra note 7, p. 57.

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STRATEGIES OF ETHNIC CONFLICT RESOLUTION accommodation by intensifying the ethnic struggle for scarce resources and aggravating the ‘inter-ethnic security dilemma’. CONCLUSION In the present analysis on the exportability of the Trentino-South Tyrol model of ethnic pacification, we have come to mixed results. However, on the balance, problems and constraints largely prevail. Although we have found in the first part of this analysis many reasons why this type of exportability is desirable (and we found the model fit a global trend of similar ethnic accommodation strategies), the current Balkan context does not seem able to adapt to such a complex, costly and sophisticated ethnic reconciliation system. Indeed, there are too many unresolved issues and open wounds that hold the Balkan ‘ethnic balance’ precarious and unstable. Similarly, the Trentino-South Tyrol model was brought into existence and could only develop given certain specific circumstances, which cannot be found in the Balkans. Despite some elements of optimism, the Balkan ‘inter-ethnic security dilemma’ is and will continue to be irresolvable and problematic, at least in the foreseeable future.32 In this context, the role that the international community can play to stabilise the Balkans is fundamental. It is crucial that the international community promote and provide support to the political and economic democratisation of the region. Indeed, only within a democratic framework, is effective and durable ethnic conflict resolution possible.

32

Such as the seemingly strong commitment of the international community in terms of economic assistance, the better profile of the Serb leadership, the end of the Serbian ostracism from the international community and the consequent possibility of a regional and comprehensive approach to the Balkan problems through the Stability Pact.

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NATIONAL AND REGIONAL EXPERIMENTS WITH AUTONOMOUS ARRANGEMENTS EXPERIMENTS WITH AUTONOMY IN THE UNITED KINGDOM SINCE 19981 Patricia Leopold2 1. INTRODUCTION Autonomy is a new concept in the British constitution. It has been provided for in a limited sense since 1998 in the provision of types of devolved self-government for three of the countries making up the United Kingdom: Scotland, Wales and Northern Ireland. The reasons for granting such autonomy are various, and differ with respect to each country. For example, one of the aims of devolution was to enable those who live in Scotland and Wales to fulfil their particular aspirations for self-governance while maintaining their membership of the Union. In Northern Ireland, this aim is slightly different it is that continued membership of the Union would become acceptable to all communities in that country.3 This chapter will consider several aspects of this new autonomy where a particular response has been made in the devolution legislation.4 The aspects chosen are: representation of minority groups and power sharing; equality of opportunity and human rights; and cultural protection. What we will see, is that in these areas attempts have been made by legal and constitutional means to bring about change in how these regions are governed. In this discussion more detailed reference will be made to the position in Northern Ireland than to Scotland or Wales. This is because the devolution arrangements for Northern Ireland have particular provisions for the protection of minority rights not found in the other devolution arrangements.

1

The Channel Islands and the Isle of Man are not part of the United Kingdom, nor are they colonies, but they are part of Her Majesty’s dominions; they have a considerable measure of autonomy in internal affairs. 2 Senior Lecturer in Law, The University of Reading, England. 3 Only in the devolution legislation for Northern Ireland is there provision for the people of Northern Ireland to vote in a poll to leave the United Kingdom. 4 The term devolution legislation is used to refer to the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998. All these statutes were enacted by the Westminister Parliament.

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PATRICIA LEOPOLD Before looking at these particular aspects of autonomy it is first necessary to outline the background to the changes introduced in 1998, and explain briefly the different types of autonomy provided by the 1998 devolution legislation.5 2. INTRODUCTION TO THE BRITISH CONSTITUTION The United Kingdom is a unitary state made up of England, Wales, Scotland and Northern Ireland. It came into existence gradually, starting in 1282 with the English military conquest of Wales, although full union did not occur until 1536. Until 1603 Scotland and England were separate kingdoms, but in that year there was a personal union of the Crowns, which was followed in 1707 by a political union of the two kingdoms, creating the United Kingdom of Great Britain. The United Kingdom of Great Britain and Ireland came into existence in 1800, and lasted until 1921 when the greater part of Ireland left the United Kingdom. Since 1921 only the six counties in the north east of Ireland (Northern Ireland) remain part of the United Kingdom, hence the name the United Kingdom of Great Britain and Northern Ireland. The existence, at some time in history, of four separate nations with distinct geographical locations explains the type of regional autonomy devised in 1998. The United Kingdom has always been a multinational state but, until 1998, one that made little official or institutional provision to enable each part of that state to express its identity. Until after the second world-war (with the exception of Northern Ireland) the constitution could be described as Anglo-centric in nature, playing little regard to the local identities of Scotland, Wales or, for that matter, the English regions. Governance of the United Kingdom was ‘top down’. Despite this, the countries making up the UK retained their cultural diversity. There are many characteristics which are common to all parts of the United Kingdom: a common loyalty to Her Majesty the Queen as head of state, a common British citizenship, representation in the parliament at Westminster, a single currency and a common language, English. However even these characteristics are under strain with declining support for the monarchy, a growing number of people who consider themselves English, Scottish, Welsh, Ulster, or Irish,6 and an increase in the use of minority languages such as Welsh, Gaelic, Irish and Ulster-Scots in the business of devolved government. This in itself gives rise to a further and new problem: what of those who are for example black, Asian or Jewish? Can these groups fit into the more nationalistic versions that may be developing in each part of the United Kingdom, where being British is not necessarily the unifying factor it was once? The fact that the UK has remained a stable unitary state for so long may mask the tensions that have existed and continue to exist within the UK. In the late 19th and early 20th centuries when there was extensive pressure for 'home rule' for Ireland, Bills proposing home rule for Scotland and Wales were (unsuccessfully) 5

For a more detailed account see, Noreen Burrows, Devolution (2000); Jackson and Leopold, O. Hood Phillips and Jackson, Constitutional and Administrative Law (2001) Chap.5. 6 The first four of which have no legal significance.

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EXPERMINENTS WITH AUTONOMY IN THE UNITED KINGDOM SINCE 1998 introduced into the Westminster Parliament. From 1920-1972 Northern Ireland, although still part of the Union, had a form of home rule, which became known as devolution. In the 1960’s nationalism as a political movement began to have an impact in Scotland and Wales, and in 1978 legislation was passed to give Scotland and Wales each a type of devolution. Referendums were held in Scotland and Wales on the proposals, but there was not sufficient support for them to be implemented, and the legislation was repealed. The term devolution7 refers to the delegation of central government powers without the relinquishment of supremacy by the central legislature (the Westminster Parliament). Devolution may be legislative or executive or both, and in its more advanced forms involves the exercise of powers by persons or bodies who, although acting on authority delegated by the Westminster Parliament, are not directly answerable to it or to the central government.8 Devolution is said not to affect the unity of the United Kingdom or the power of Westminster to legislate (even in devolved matters) for all or any part of the United Kingdom, or to repeal or amend the devolution arrangements themselves. 3. ‘AUTONOMY’ PRIOR TO 1998 3.1. Northern Ireland From 1921 to 1972 the Northern Ireland Parliament and government had powers to make laws ‘for the peace order and good government of Northern Ireland’, only matters such as foreign relations, defence and nationality were reserved to Westminster.9 Local Northern Ireland ministries and departments were established in the usual areas of government, and in this period Northern Ireland passed it own laws, had its own legal system, system of administration and its own civil service. The introduction of devolution in 1921 was a solution that was acceptable to neither the nationalist, and predominately Roman Catholic community, nor the unionist and predominately Protestant community. The existence and antagonism of two identifiable communities in Northern Ireland is something not found in the rest of the UK. The former wanted a united Ireland independent from the United Kingdom, the latter wanted full integration within the United Kingdom. The 1921 scheme of devolution came to an end in 1972; that it did so was not due to a defect in the concept of devolution, but a reflection on a system which failed to take account of the divisions within the Province, allowed one party which represented the majority of the people in Northern Ireland to ignore the interests of any other group, and too great a willingness by successive United Kingdom governments not to intervene. It may even be questioned whether devolution was an appropriate way to solve the 7 For the background see: (1973) Cmnd. 5460, Report of Royal Commission on the Constitution (Kilbrandon Report). 8 Kilbrandon Report, p.165. 9 For further details see: H. Calvert, Constitutional Law in Northern Ireland (1968); B. Hadfield, The Constitution of Northern Ireland (1989).

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PATRICIA LEOPOLD problems of Northern Ireland. From 1972 to 2000 Northern Ireland was governed from London, by what was known as ‘direct rule’. 3.2. Scotland Although since 1707 the central administration of Scotland had been the exclusive responsibility of the British Government, and the Westminster Parliament the sole source of legislation for Scotland, the distinctive Scottish legal system and Scots law were guaranteed by the Treaty of Union 1707. From 1885 Scotland had its own Secretary of State (a UK government minister) who from 1926 had a seat in the cabinet. However this position has been described as, ‘acting more as London’s viceroy than Scotland’s consul’.10 At the same time a Scottish Office (a UK government department) was created. Gradually executive powers were devolved to the Scottish Office, which was able to devise, execute and administer the policies of the United Kingdom government in a Scottish context. In addition the different legal system required statutes that applied only to Scotland to be passed by Westminster. This was a system of executive devolution, which enabled Scotland to maintain the appearance of a separate, yet constituent, part of the union state. 3.3. Wales Wales also had executive devolution, but it developed at a slower pace than in Scotland. It was not until 1964 that the Welsh Office and a Secretary of State for Wales were created. Unlike Scotland, Wales did not have its own laws and legal system, this was because between 1282 and 1536 Wales had become economically and politically united with England, and in consequence there was no need to legislate separately for Wales. The only exception was legislation connected with such matters as Welsh language, culture and heritage. 4. INTRODUCTION TO THE 1998 DEVOLUTION LEGISLATION The three rather different backgrounds in Scotland, Wales and Northern Ireland are reflected in three different types of devolution settlement. The devolution settlements are based on the former nations (truncated in 1921 in the case of Northern Ireland) that make up the United Kingdom. The exception is England, which has been left out of the new constitutional arrangements, just as it had been left out of any attempts at executive devolution since the Second World War. Although devolution to Scotland, Wales and Northern Ireland has implications for all of the UK and for England, voters in England were not asked to approve any of the devolution proposals. This is an illustration of the affect of the lack of a documentary constitution in the UK: there is no special provision for constitutional change. Referendums on proposals for devolution were held in Scotland, Wales and 10

M. O'Neil, ‘Great Britain: From Dicey to Devolution’, (1999) 55 Parliamentary Affairs, 69 at p. 70.

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EXPERMINENTS WITH AUTONOMY IN THE UNITED KINGDOM SINCE 1998 Northern Ireland,11 but there was no constitutional requirement to do so, and no legal, as opposed to political, obligation on the Government or Parliament to take account of the results of the referendums. The rest of this chapter will not consider the position of England, or the English regions. The "English Question" has been described as ‘the Cinderella of constitutional reform’.12 4.1. Scotland and Wales From 1979 to 1992 the pressures for devolution to Scotland and Wales mainly came from outside government and parliament; the then Conservative government was committed to the preservation of the Union, and opposed to devolution. Throughout the period of Conservative government, the Conservative Party had little electoral support in Scotland and Wales and its strong electoral support in England meant that it did not need to take account of Scottish or Welsh interests. This difference between the electoral preferences of the people in Scotland and Wales, and the political composition of the government at Westminster, increased the demands in Scotland and Wales for devolution. In 1997 the Labour Party won the general election with a commitment to institute a wide range of constitutional reforms, including devolution.13 Referendums were held before the passage of the devolution legislation and this time there was sufficient support for the government to introduce the necessary legislation: the Scotland Act 1998 and the Government of Wales Act 1998 were passed. The first elections were held in May 1999. The results of the 1997 referendums in Scotland and Wales indicate some of the differences between these two countries in terms of what could be described as ethnic nationality. Just over 74% of those who voted in Scotland were in favour of devolution,14 with all the voting regions giving devolution their support. This can be contrasted with Wales where just over 50% of those who voted were in favour of devolution. Those in the Welsh-speaking north of Wales were more in favour than those in the English-speaking south. Voters in east Wales (closer to England) were less in favour of devolution that those in the west. The Scots were more united in their support of devolution, irrespective of geographical location. 4.2. Northern Ireland The establishment of lasting new provisions for the government of Northern Ireland had been the aim of successive governments for many years. United Kingdom governments eventually recognised that solutions to the problems of Northern Ireland had to involve the Republic of Ireland. In 1985 the Governments of the United Kingdom and the Republic of Ireland concluded the Anglo-Irish Agreement 11

Also in the Republic of Ireland. Hazell et al, ‘The Constitution: Coming in from the Cold’, 55 Parliamentary Affairs (2002), 219–234, at p. 222. 13 The Labour Party has strong electoral support in Scotland and Wales. 14 There was a 63.5% turnout in Scotland, compared to a 51.3% turnout in Wales. 12

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PATRICIA LEOPOLD which established within the framework of the Inter-Government Council established in 1981, an Inter-governmental Conference. This was to consider on a regular basis matters relating to Northern Ireland and relations between the two parts of the island of Ireland. For a variety of reason no progress was made toward solving the problems of Northern Ireland. In 1993 behind the scenes talks between several of the political parties in Northern Ireland progressed sufficiently to allow the ‘peace process’ to be given official recognition and encouragement. The Downing Street Declaration15 between the British and Irish governments recognised and renewed the position of Northern Ireland as part of the United Kingdom so long as that was the wish of the majority of the people of Northern Ireland. It also stated that the British government had no ‘selfish, strategic or economic interest in Northern Ireland’, thereby indicating the neutrality of the British government in the future constitutional position of Northern Ireland. Despite many attempts it was not until 1998 that there was any sign or hope of progress. The election of Labour Government did not mark any change of policy on Northern Ireland, but its clear commitment to general constitutional reform and sound majority in the House of Commons provided the necessary impetus to make new progress. Multi-party negotiations – which with the renewal of its cease-fire included Sinn Fein – under the chairmanship of Mr George Mitchell started and concluded on Good Friday 1998 with the Belfast Agreement,16 which was approved in referendums by the people in both parts of Ireland and formed the basis of the 1998 devolution legislation. In Northern Ireland 75% of those who voted in the referendum were in favour of the Belfast Agreement. However, only half of Protestants/Unionists who voted were in favour, whereas 98 % of the Catholics/Nationalists who voted supported the proposals. Support for devolution in Northern Ireland, reflecting the different senses of ethnic nationality found in the Province, resembled the position in Wales more than that in Scotland. Scotland also differs from Wales and Northern Ireland in that the sense of Scottish national identity ‘draws very thinly on cultural traditions; there is virtually no linguistic or religious basis to nationalism. As a consequence the tariff for being a nationalist is much lower (than in Northern Ireland or Wales)’.17 The referendum result in NI also reflected the fact that there was not any collective commitment to the establishment of local democratic-pluralist institutions. Rather the collective commitment was to attempt to bring the thirty years of ‘the troubles’ to an end. The devolution legislation was only to come into effect if the Secretary of State for Northern Ireland (a UK Cabinet minister) was satisfied that there had been sufficient progress in implementing the Belfast Agreement. This happened in December 1999, but was short lived; devolution was suspended ten weeks later but was restored in May 2000. It has encountered several further suspensions and restorations. 15

Cm. 2442 (1993). The Agreement reached in multi-party negotiations Cm. 4292 (1998). 17 McCrone, Understanding Scotland: the Sociology of a Stateless Nation (1992). 16

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EXPERMINENTS WITH AUTONOMY IN THE UNITED KINGDOM SINCE 1998 5. THE 1998 PROVISIONS FOR DEVOLUTION18 The devolution schemes devised in 1998 sought to meet the perceived different needs and circumstances of Scotland, Northern Ireland and Wales. What we have seen since 1998 is a constitutional recognition of sub-national identities within the UK. We can also see with respect to Northern Ireland where the population is divided by religion and ethnicity, several individual and specific provisions in its devolution arrangements. However there are similarities in the three systems, three of which are of general importance and of particular significance when it comes to the discussion of representation of minority groups, power-sharing, individual rights, cultural protection. These are: the electoral systems, subordination to Westminster, and human rights. 5.1. The electoral systems All three systems of devolution provide for one legislative chamber called a Parliament in Scotland and an Assembly in Wales and Northern Ireland. Elections to the Westminster Parliament are by the ‘first past the post’ system, which usually leads to the election of governments which have less than 50% of electoral support. This can be contrasted with the statutory requirement that elections to the devolved bodies have to be by proportional representation (PR), thereby encouraging multiparty ‘government’ in the devolved administrations. 5.2. Subordination to Westminster Scotland, Wales and Northern Ireland all have legislation made by Westminster as the basis for devolution, and in legal terms this legislation has no special status. The characteristic of a devolved system is that powers are delegated by the centre to the regions, without relinquishment of sovereignty. A government paper in 1997 stated that: ‘The United Kingdom Parliament is and will remain sovereign in all matters.’19 Acts passed by the Scottish Parliament and by the Northern Ireland Assembly are not sovereign, and may be set aside by the courts if they exceed the institution’s legislative competence. The Scotland Act and the Northern Ireland Act both make it clear that, notwithstanding devolution, the Westminster Parliament retains power to legislate, not only on matters specifically reserved to Westminster, but also on devolved matters. Since Westminster remains the principal lawmaker for Wales there was no need for a similar provision in the Government of Wales Act. The precise details of the relationships between each of the new institutions and Westminster (and Whitehall) were not provided in the relevant devolution statutes, but are found in a variety of non-binding written agreements. Included in this is a 18

See V. Bogdanor Devolution in the United Kingdom (1999); A. Ward, Chap. 5, ‘Devolution: Labour’s Strange Constitutional “Design”’, in Jowell and Oliver, The Changing Constitution 4th ed., (2000). 19 Cm. 3658 para. 42.

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PATRICIA LEOPOLD convention which states that Westminster will not ‘normally’ legislate with regard to devolved matters without the consent of the relevant devolved institution. Despite this legal analysis of devolution, it can be argued that in practice sovereignty has been transferred; Westminster is only likely to take sovereignty back in exceptional circumstances.20 Special judicial procedures are provided to resolve ‘devolution issues’.21 These are described in the devolution legislation as questions concerning the lawful exercise of power under the respective legislation. In short devolution issues are questions concerned with whether the relevant body has acted within its statutory powers, infringed a European Convention on Human Rights (ECHR) right or European Community law. 5.3. Human rights The devolved bodies are bound by the ECHR and by the Human Rights Act 1998, an Act passed by the Westminster Parliament. Whereas the constitution of the UK does not prevent the Westminster Parliament or the Government acting in contravention of the Human Rights Act, the devolved bodies do not have this freedom. 6. OUTLINE OF THE DEVOLUTION PROVISIONS The devolution schemes reflect the pre-devolution background in each of the countries concerned. As both Scotland and Northern Ireland already had their own laws and legal systems the Scottish Parliament and Northern Ireland Assembly have more extensive law making powers than the Welsh Assembly. A variety of laws that had previously been made at Westminster can now be made in Edinburgh or Belfast. In contrast the Welsh Assembly does not have legislative powers, laws that apply to Great Britain will continue to provide the primary legislation for Wales. The Welsh Assembly can make only new secondary legislation on devolved matters; something that can also be done by the Scottish Parliament and Northern Ireland Assembly. All three institutions have Executives that form the ‘governments’ for the purpose of devolution. 6.1. Scotland The Scotland Act 1998 provides for both a Scottish Executive and a Parliament. The functions of the Scottish Parliament and the Scottish Executive are only those within their ‘devolved competencies’, that is within the powers as provided by the 1998 Act. The powers of the Executive are in effect circumscribed by the powers of the Parliament. The Scottish Parliament has a general power to make laws, known as 20

As happened in Northern Ireland in 1972. The Judicial Committee of the Privy Council, a Committee made up of judges who are members of the House of Lords, has final jurisdiction in such matters. 21

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EXPERMINENTS WITH AUTONOMY IN THE UNITED KINGDOM SINCE 1998 Acts of the Scottish Parliament within its legislative competence. A variety of restrictions are placed on its legislative competence. These include prohibiting the making of legislation modifying certain statutes including the Human Rights Act 1998 and most of the Scotland Act 1998, certain ‘reserved matters’ such as the constitution, political parties, foreign affairs, public service, defence, and treason.22 The fields in which the Scottish Parliament and Executive have powers include: the health service,23 local government - including expenditure and the financing of local government, education and training, housing, transport, sport, the legal system including law and order, farming, fishing, forestry, the arts, the countryside and economic development. The Scottish Parliament, alone of the devolved institutions, has a limited tax varying power, and it has to approve a Scottish budget. It can debate any matter of national or international importance, irrespective of whether the subject matter is devolved or reserved. The Scotland Act transferred to Scottish Ministers functions previously exercised by Ministers of the Crown that are within ‘devolved competence’. In due course, additional statutory functions will be conferred on Scottish Ministers by Acts of the Scottish Parliament. The First Minister who is elected by and from the Parliament heads the Scottish Executive. The First Minister selects the other members of the Executive. 6.2. Northern Ireland A general legislative power is devolved to the Northern Ireland Assembly, but this power is subject to greater restrictions than is the case in Scotland. The United Kingdom Government retains a number of powers to legislate for the Assembly by Order in Council. Three types of powers are defined in the Northern Ireland Act: ‘transferred matters’, ‘excepted matters’ and ‘reserved matters’. The Northern Ireland Assembly and Northern Ireland Executive have functions in relation to ‘transferred matters’, which are all matters that are not ‘excepted’ or ‘reserved’. The devolution legislation provides definitions of these. In short, excepted matters are those which, in effect, will never be transferred to the Northern Ireland institutions and include: Crown matters, Parliament, international relations, defence, treason, elections, national security, nuclear energy and the Northern Ireland Constitution including parts of the 1998 Act. Reserved matters include postal services, criminal law, courts, firearms and explosives, telecommunications, data protection and consumer safety. An item on the reserved list is potentially within the legislative competence of the Assembly but only with the consent of the Secretary of State for Northern Ireland.24 However, as in Scotland, the Assembly even with respect to transferred matters, must act within its legislative competence. This means for 22

There is provision for the modification by an Order made at Westminister of reserved matters, so enabling an increase in the powers of the Scottish Parliament and Executive. 23 Apart from those matters reserved to Westminster which include abortion; embryology, surrogacy and genetics; medicines, medical supplies and poisons. 24 There must also be cross-community support (see below) before reserved powers can be transferred to the Assembly.

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PATRICIA LEOPOLD example that Acts must not be incompatible with ECHR rights or European Community law or discriminate against any person or class of persons on the ground of religious belief or political opinion.25 A particular characteristic of the Northern Ireland Assembly, not found in other devolved bodies is the statutory requirement that certain decision have to be taken with ‘cross-community support’. Members are required when signing the Assembly roll to designate himself or herself as ‘unionist’, ‘nationalist’ or other. Calculations as to whether a measure has crosscommunity support are based on these designations. Cross-community support requires the support of 60% of Assembly members plus the support of 40% of both the designated unionist and designated nationalist members. It is required for a variety of decisions including the election of the First and Deputy First Minister, the approval of Standing Orders, the adoption of the budget and the approval of the Executive Committee’s Programme for Government. The legislative powers of the Northern Ireland Assembly include agriculture, environment, education, health, social services, culture and the arts. Powers have been transferred to the Executive within those areas that fall within the legislative competence of the Assembly. The selection process for the Executive, which reflects the consociational nature of the devolution settlement for Northern Ireland, will be discussed below. 6.3. Wales The Welsh National Assembly was established to replace the Secretary of State for Wales in the administration of Wales and in the enactment of subordinate legislation, known as Assembly Orders, as well as the issuing of circulars setting out policy statements and giving guidance on the carrying out of statutory powers. In consequence Assembly Members are members of both the executive and the legislature in Wales. The Assembly has no legislative powers and it is in Wales that there is least local autonomy. The Assembly has had conferred on it powers in fields including: agriculture and food; culture; education and training; the environment; health and the health services; transport and the Welsh language. Additional powers will be transferred to the National Assembly as new legislation is enacted by Westminster. The extent and expansion of the powers of the Assembly depends on the extent to which the Westminster parliament is willing to delegate further discretionary powers to it. In addition the Assembly is expected to contribute to the economic growth of Wales, sustain and promote local government in Wales and promote the interests of voluntary organisations. It is a national debating and investigatory forum for Wales and Welsh affairs and may cause inquiries to be held in any matter relevant to its functions. As in Scotland and Northern Ireland the Welsh Assembly runs under a committee structure. One type of committee only required to be established in Wales, is regional committees. The devolution legislation requires the Assembly to establish a committee for North Wales and for each of the other regions of Wales. 25

The latter is specific to NI, there is no such limitation on the Scottish Parliament or Executive.

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EXPERMINENTS WITH AUTONOMY IN THE UNITED KINGDOM SINCE 1998 Three additional committees have been established, for Mid Wales, and for South East and South West Wales. The establishment of these committees is an acknowledgement that in Wales there are distinct regions, each of which has different needs and aspirations that may conflict with the needs and aspirations of other regions. This could be seen in the results in the 1997 referendum.26 These committees have only an advisory role, and cannot hold the Assembly to account in any way. They are required to meet in their regions at least twice a year and advise the Assembly on matters affecting the relevant region. The purpose of these committees is to help bring the Assembly closer to the people of Wales. There is a fear that they will be no more than ‘waffle shops’. 7. REPRESENTATION OF MINORITY GROUPS AND POWER SHARING It was envisaged that the new Parliament/Assemblies would be more representative of the population than is the case at Westminster. Westminster as an important aspect of the devolution arrangements regarded the requirement in the devolution legislation that elections should be by proportional representation and supervision of the electoral systems is given to UK Ministers,27 and in the case of Northern Ireland elections are an ‘excepted matter’.28 7.1. Scotland and Wales The system for Scotland and Wales gives voters two votes. The first is a vote for a constituency member elected by the traditional first past the post method; 73 Members of the Scottish Parliament and 40 Members of the Welsh Assembly are elected this way. The second vote is for members to represent the regions, which are based on the European Parliament election regions. Scotland has eight regions each returning seven members; Wales five, each returning four members. These additional regional members are elected by the d’Hondt29 system of proportional representation whereby each elector casts his vote for a particular party list and seats are allocated by reference to the votes cast for each party in the region. As Scotland elects 56 of its 129 members by this system compared to 20 of the 60 members in the Welsh Assembly, representation in the Scottish Parliament is likely to be more proportional to the votes cast than is the case in Wales. The result of this voting system was that in both Scotland and Wales the respective nationalist parties gained

26

See supra note 10, pages 2 and 4. There remains a UK Secretary of State for each of Scotland, Wales and Northern Ireland; but there is not and never has been such a Minister for England. This means that the interests of Scotland, Wales and Northern Ireland are represented in the UK cabinet. 28 This means that powers over elections cannot be transferred to the Northern Ireland Assembly. Elections by PR had been provided in the Government of Ireland Act 1920, but it was not an excepted matter, and was abandoned by the Northern Ireland Parliament in 1929. 29 Named after its inventor. 27

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PATRICIA LEOPOLD a significant number of seats,30 giving both parties an influence in their respective Parliament/Assembly far greater than they had ever achieved at Westminster. In the 1999 elections in Scotland no one party had an overall majority. A ‘Partnership for Scotland’ was agreed between the Labour Party and the Scottish Liberal Democrats, and the political composition of the Executive reflected this agreement. This coalition has continued, but not without its difficulties. In Wales, in the 1999 election the Labour Party emerged as the largest party, but without overall control of the National Assembly. It decided to form a minority administration, but this was short lived, as was the reign of the first Minister. In October 2000 a formal coalition between Labour and the Liberal Democratic Party emerged, and Plaid Cymru became the official opposition. 7.2. Northern Ireland Since 1973 in an attempt to represent the different sections of the community, a variety of elections in Northern Ireland have been by PR. A different system of PR was adopted for the Northern Ireland Assembly to that for Scotland and Wales: the Single Transferable Vote (STV). In this system voters mark their preference numerically against their chosen candidates, the application of a formula establishes the quotas required to elect the necessary number of representatives. The eighteen Westminster constituencies for Northern Ireland each return six members to the Assembly. This type of electoral system was used to ensure the establishment of a consociational or power-sharing government: a legal requirement of the Northern Ireland devolution legislation. It was also recognition that within Northern Ireland there are diverse groups that should be represented in the composition of the Assembly. However STV is also a system that it has been suggested provides no disincentive for voters or parties to pursue extremist electoral behaviour, and has resulted in an erosion of the political centre.31 The desire to ensure that all sections of the community in Northern Ireland are represented in the Assembly is also reflected in its size. The Northern Ireland Assembly has 108 members for a population of 1.7 million; Scotland has 129 members for a population of over 4 million. Again this could be seen as an encouragement to elect extremists, rather than moderates. The 1999 elections resulted in a plethora of parties being represented in the Assembly; nine in all, six of which were pro the Belfast Agreement, the other three anti the agreement.

30

The Scottish Nationalist Party won a total of 35 seats, the Welsh nationalists (Plaid Cymru) won a total of 17 seats. 31 D.Herowitz, ‘The Northern Ireland Agreement: consociationalist, maximalist and risky’, in McGarry (ed.), Northern Ireland and the Divided World (2001); Wilford and Wilson, A Democratic Design? The political style of the Northern Ireland Assembly, the Constitution Unit (2001).

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EXPERMINENTS WITH AUTONOMY IN THE UNITED KINGDOM SINCE 1998 7.3. The Northern Ireland Executive The particular problems of Northern Ireland have led to a complex procedure for the establishment of the Northern Ireland Executive that aims to move Northern Ireland towards consociational government. The Assembly elects the First and Deputy First Ministers as a team,32 and both are designated as chairmen of the Northern Ireland Executive Committee. They are required to act jointly when exercising their functions that include nominating Ministers to the North-South and British-Irish Councils,33 exercising certain prerogative powers of the Crown in Northern Ireland and deciding on the number and functions of, the Northern Ireland Ministers. Ministers to fill ministerial positions are not chosen by the First and Deputy First Ministers, but have to be elected by the Assembly using the d’Hondt system of proportional representation. This is designed to give the parties ministerial posts in proportion to their strength in the Assembly, but not necessarily the posts of their choice. The Executive Committee so established is a multi-party body that will require cross-community support from the Assembly. The disadvantage of this arrangement is that it more difficult for the Assembly to properly scrutinise the Executive. It also prevents any notion of true coalition government: the coalition is a statutory, not a voluntary, arrangement. All Ministers are required to take a pledge of office, which includes a commitment to ‘serve all people of Northern Ireland equally, and to act in accordance with the general obligations on government to promote equality and prevent discrimination’. The supervision of each Ministry is by a statutory committee. Provision is made in the devolution legislation and by Standing Order to ensure that, in appointing members to all committees, regard is had to the balance of parties in the Assembly.34 In addition in Northern Ireland a member who is not from the same party as the Minister concerned must chair a statutory committee. This system was devised to both encourage power sharing and to prevent any one party being able to abuse its power in a particular area of government.35

32

Each successful candidate must have the support of a majority of the Assembly and the support of both the majority of Unionist and Nationalist members. In November 2001 to ensure the reelection of Mr Trimble as First Minister, two Alliance members temporarily declared themselves to be Unionists, thereby enabling him to achieve the necessary Unionist threshold of votes. 33 The Belfast Agreement recognised that these was a need not just to promote good relationships within NI, but also to promote such relationships outside NI. This takes the form of a body to consider relations namely between the two parts of Ireland (the North-South Council), and one composed of representatives from the UK, Ireland all the devolved institutions, plus representatives from the Isle of Man and the Channel Islands (the British-Irish Council). 34 This is also a requirement of the devolution legislation for Scotland and Wales. 35 There are similar committees in Scotland (called subject committees), but this is by choice of the Assembly and not a requirement of the devolution legislation. In Wales the devolution legislation requires the establishment of statutory committees.

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PATRICIA LEOPOLD 8. EQUALITY OF OPPORTUNITY AND HUMAN RIGHTS 8.1. Equality of Opportunity The devolution legislation imposes different levels of statutory duty on the devolved bodies with respect to equality of opportunity. However this has to be seen in the context that such obligations are in addition to the UK statutes that apply to Scotland and Wales and, to a limited extent, to Northern Ireland.36 One of the reserved matters (that is a matter upon which Scotland cannot legislate) is equal opportunities legislation such as that on race and sex. However this does not prevent the Scottish Parliament from encouraging (other than by prohibition or regulation) the observation of equal opportunities requirements. Although there are no specific additional statutory equal opportunity obligations imposed on the Scottish Parliament, it has decided in its Standing Orders to accept that equal opportunities includes the prevention, elimination or regulation of discrimination on a wide range of matters including race, sex, sexual orientation, religious beliefs and political opinions. In Scotland an Equal Opportunities Committee is one of the mandatory committee. It is required to consider and report on matters relating to equal opportunities and upon the observation of equal opportunities within the Parliament. This committee has made a variety of reports on matters such as gender equality, race, and gypsy travellers. The Welsh Assembly is required to make appropriate arrangements with a view to securing the exercise of its functions with due regard to the principle of equal opportunity for all people, and to ensure that Assembly business is conducted with due regard to the same principle. Standing Orders of the Assembly required the establishment of a Committee on Equal Opportunity to audit the Assembly’s progress towards this principle. This committee has looked at a variety of issues including equal pay, public appointments, and racial discrimination. The applicable primary legislation on these areas is made by Westminster, and the statutory bodies such as the Commission for Racial Equality have jurisdiction in Wales. The Assembly has considered how to implement a variety of equality laws and policies in a Welsh context, and with particular reference to the Assembly and other public bodies in Wales. It has also reviewed equality of opportunity with respect to gypsy travellers. Here, as with respect to human rights, the statutory obligations are most onerous with respect to Northern Ireland. Only in Northern Ireland does the devolution legislation include a prohibition on legislation or other act that discriminates against a person or class of persons on the grounds of religious belief or political opinion 36 The position is complicated. Some UK legislation such as the Disability Discrimination Act 1995 applies to all of the UK, whereas the Race Relation Act applies to England, Scotland and Wales. A similar measure, the Race Relations (NI) Order applies in NI. During the period of direct rule Orders were made to introduce equality legislation in NI, similar or identical to that applicable in Great Britain.

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EXPERMINENTS WITH AUTONOMY IN THE UNITED KINGDOM SINCE 1998 and a statutory obligation on all public authorities to promote equality of opportunity. It is also unlawful for a public authority carrying out functions relating to NI, to discriminate against a person or class of person on the ground of religious belief or political opinion. In Northern Ireland the Standing Orders of the Assembly enable it to establish an ad hoc Committee on Conformity with Equality Requirements. Such a committee would examine and report on whether a Bill or proposal on legislation was in accordance with equality requirement, including the ECHR and any NI Bill of Rights. No such committee has been established. It may be that as the Human Rights Commission (below) has such scrutiny as one of its functions, such a committee is not really necessary. It is also the case that each of the statutory committees ‘equality proofs’ Bills promoted by the respective Department. The devolution legislation establishes in Northern Ireland a statutory Equality Commission. This took over the functions of a variety of existing NI bodies concerned with equal opportunities: the Equal Opportunities Commission, the Commission for Racial Equality, and the Disability Council. The existence of such a body enables the review of equality legislation to be made in a local NI context. The Equality Commission has made extensive provisions for a new Equality Act for NI that would replace and up date the variety of legislative provisions on equality that exist in NI.37 The proposals would provide for measures that would not only outlaw a variety of discriminatory activities, but also in furtherance of section 75 of the Northern Ireland Act, require public authorities to take steps to encourage a more positive approach to the promotion of equality. the. An Executive Bill is expected before the end of 2002. This is an example of the Northern Ireland Assembly having more extensive legislative powers than the Scottish Parliament. It would appear that in NI the auditing of equality requirements is more the concern of bodies outside the Assembly, than within it. It is also the case that in NI there is a significant overlap between equality and human right provisions. 8.2. Human Rights The Human Rights Act 1998 was another of the constitutional reforms introduced by the new Labour Government after the 1997 election. This Act, in a limited sense, makes many of the provisions of the ECHR directly effective in the United Kingdom. The Human Rights Act does not entrench these rights; they cannot override UK legislation that is incompatible with such rights.38 However the devolution legislation takes a different approach with respect to the application of the Human Rights Act to the devolved bodies. Both the Scotland Act and the Northern Ireland Act provide that legislation that is incompatible with ECHR rights is outside the legislative competence of the relevant institution. Likewise members of the respective Executives are statutorily prohibited from making subordinate 37 According to the Equality Commission, current equality law is found in over 70 legislative provisions. See the paper from the Equality Commission for NI, The Single Equality Bill 38 For details of how the Human Rights Act works see H. Phillips op. cit. chap. 22

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PATRICIA LEOPOLD legislation that is incompatible with ECHR rights. Similar restrictions are also imposed on the more limited powers of the Welsh Assembly. There are no specific committees in either the Scottish Parliament or the Welsh Assembly concerned with human rights. The Welsh Committee on Equality of Opportunity has considered whether it should extend its remit to include human rights. Its initial decision was not to do so, but it is at present (July 2002) reconsidering this decision. It is with respect to Northern Ireland that the greatest emphasis is given to human rights issues. This can be seen in specific provisions in the devolution legislation, in the establishment of institutions not found elsewhere in the UK, and in aspects of the organisation of the Northern Ireland Executive. The basis for these extensive provisions is to be found in the Belfast Agreement, which had committed all parties to the mutual respect, the civil rights and the religious liberties of everyone in Northern Ireland. Special provisions with respect to human rights are not a new development for Northern Ireland. There have been a variety of legislative measures over the years designed to address individual human rights issues perceived as particular to Northern Ireland. Examples include a specific offence of incitement to religious hatred,39 and the Fair Employment (Northern Ireland) Act 1976. One of the functions of the Office of the First Minister and Deputy First Minister is with respect to human rights. A Human Rights Unit is a branch within the Community Relations and Victims Division of the Office of the First Minister and Deputy First Minister (OFMDFM).40 The published aim of this unit is to promote a culture of rights and responsibilities within the NI departments and public authorities for which the First Minister and the Deputy First Minister are responsible, it was also responsible for helping the relevant departments and authorities get ready for the full effect of the Human Rights Act. One of the problems identified early on by some within the Assembly was the lack of an Assembly committee to ensure accountability of aspects of the work of the OFMDFM, including human rights and equality of opportunity. The result was the establishment of the Committee of the Centre, which covers these matters along with several others; a not particularly satisfactory solution. Only in Northern Ireland is there is a statutory Human Rights Commission (NIHRC)41 to "keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights".42 The Scottish Parliament has indicated its intention of establishing such an institution, and the possibility of establishing one for the UK has not been ruled out, but appears not to be high on the Government’s agenda. So far as Northern Ireland is concerned the existence of such a body is also a way of guaranteeing minimum rights for all the 39

Enacted by the Parliament of Northern Ireland in 1970. It also works with the Human Rights Unit in the Northern Ireland office, which has responsibilities for human rights matters in reserved areas. 41 Replacing the Standing Advisory Commission on Human Rights. 42 See B. Dickson, ‘New Human Rights Protections in Northern Ireland’, 24 E.L.Rev. (1999) 40

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EXPERMINENTS WITH AUTONOMY IN THE UNITED KINGDOM SINCE 1998 people of Northern Ireland irrespective of the composition of the Northern Ireland Assembly and Executive. The NIHRC is required to make its annual report to the Secretary of State for Northern Ireland, emphasising the importance of this body in a wider UK context. The NIRC has several statutory functions which include advising on: how to improve its roles and functions; any legislative or other measures that could be taken to protect human rights; and the compatibility of any Assembly Bill with human rights standards.43 One of the most important statutory tasks of the NIRC is to advise the Secretary of State for Northern Ireland on the scope for the enactment by Westminster of a Bill of Rights for Northern Ireland. The Belfast Agreement states that such a Bill should include rights supplementary to the ECHR, reflecting the particular circumstances of NI. In particular the rights are required to ‘reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem’. The NIRC published a consultation document on a NI Bill of Rights in September 2001, and its final advice to the Secretary of State should be published in summer 2002. The proposals for a Bill of Rights would go further than those that have been proposed from time to time for the rest of the UK. Issues that could prove controversial are whether the preservation of consociational government and cross-community support should be included in the Bill as examples of democratic rights. 8.3. Culture Scotland, Wales and Northern Ireland all maintained aspects of their cultural identity throughout the many years of centralist rule from London. The importance of culture and cultural identity in the countries and regions of the UK should not be underestimated. However, as can be seen in NI, cultural identity can be divisive rather than inclusive.44 This may prove a problem in the other devolved regions. As was suggested in the introduction to this chapter, too great an emphasis on a particular cultural or ethnic identity can exclude sections of the wider community. In each Parliament/Assembly there is a committee with responsibility for overseeing the work of the member of the Executive who includes culture within his or her ministry. A particular aspect of culture is language, and in each of the three countries there is at least one minority language of importance to a section of the community. Devolution has allowed all of these countries to give a greater degree of support both financial and practical than was the case before devolution. This is most marked in the cases of 43

An additional safeguard with respect to the making of legislation is the requirement that before a Bill enters its final stage, the Assembly Presiding Officer must scrutinise it to ensure that it is within the Assembly’s legislative competence, including human rights standards. 44 See Inquiry into Cultural Tourism and the Arts 01/01R, a report from the Committee for Culture, Tourism and the Arts, (2001-2002); the report refers to the: ‘Classic scenario of heritage dissonance (which) is reflected in the deep-seated, cultural schism which exists between different sectors/communities, where one person’s heritage is viewed by the opposing community as their poison.’ at 6.2.3.

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PATRICIA LEOPOLD Northern Ireland and Scotland; Wales already had a more extensive support for its minority language than Scotland or Northern Ireland. However such support comes at a not inconsiderable price. 8.4. Wales In the case of Wales the only specific legislative provisions made for it by Westminster were with respect to the Welsh language -the oldest living language of Britain. However from the mid sixteenth century, the official language of government in Wales was English. It was not until the translation of the Bible into Welsh in 1588 that there began a more general revival of the Welsh language. At the beginning of the twentieth century 50 per cent of the population could speak Welsh, by 1991 this had dropped to 19 per cent, but with an uneven distribution throughout the country. Since 1960 a variety of central government and other initiatives were undertaken to help halt this decline. Legislation was enacted to enable Welsh to be used on election forms, in court and in public administration and to enable Welsh local councils to contribute funds to support a variety of Welsh cultural activities. The Welsh Language Board, a statutory organisation which pre-dates devolution, was established to promote and facilitate the use of the Welsh language. Only the Welsh Assembly is required by the devolution legislation to treat, so far as is possible, the English and Welsh languages equally; members may speak in either language and simultaneous translation is provided for speeches made in Welsh. The Assembly has approved secondary legislation to extend the range of public bodies required to produce a Welsh Language Scheme, which will extend the range of public services that have to be accessible through the medium of Welsh.45 The Assembly has a Committee for Culture, Sport and the Welsh language, and the relevant Minister has recently published a ten-year plan for Culture, with the promise of significant increases for the funding of cultural activities. This is an example of how a devolved administration can better respond to the needs of a region than is possible in a centralised state. 8.5. Scotland It is probably only in the area of the Welsh language that Wales has had an advantage over Scotland. The existence prior to devolution of specific statutory provision for Welsh gave it a degree of official support not found in Scotland, as there is no statutory equivalent to the Welsh Language Board. However in 1984 Comunn na Gaidhlig was established as a Government funded agency with a remit to develop the Gaelic language and culture. In 1997 this body recommended that to give Gaelic education a secure status, legislation should be passed to require in all public business and the administration of justice, Gaelic and Welsh to be treated equally. This is not at the moment the policy of the Scottish Executive, although the policy is to give support to Gaelic-medium education in certain areas. A statutory 45

Prior to devolution it was the Secretary of State for Wales who made such proposals.

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EXPERMINENTS WITH AUTONOMY IN THE UNITED KINGDOM SINCE 1998 instrument made under the Standards in Scotland’s Schools Act 2000 (an Act of the Scottish Parliament) includes as one of the five national priorities in education the promotion of ‘equality . . . with particular regard to . . . Gaelic and other lesser used languages’. In the Scottish Parliament business is normally conducted in English, but members may speak in Scots Gaelic. In July 2002 the Scottish Parliament Corporate Body agreed to expand Gaelic services in the Parliament. 8.6. Northern Ireland The Belfast Agreement included in its terms the need to recognise and respect language diversity. This applies not just to Irish, but also to Ulster Scots, and in the Northern Ireland Assembly members may speak in English, Irish or Ulster Scots. There is Linguistic Diversity branch in the Department of Culture, Arts and Leisure. A North South Language Body is one of the Implementation Bodies in the North South Ministerial Council, one of the institutions established by the devolution legislation in furtherance of the Belfast Agreement. This body is concerned with the protection of both Irish and Ulster Scots. Financial support is given to minority languages including Irish and Ulster Scots. Although the financial support for the latter has been greatly increased since devolution, the Irish language receives greater support. This reflects the wider use of Irish compared to Ulster Scots, but has lead to suggestions that the difference on funding is discriminatory and in breach of the equality agenda.46 There is a non-statutory board for each of these languages: Foras na Gaeilge and Tha Boord o Ulster-Scotch. The latter has only been in existence since 1999. 9. CONCLUSION There is little doubt that devolution is here to stay, but not necessarily in the forms established by the 1998 devolution legislation. At the time of the 1997 referendum, there was marginal support for devolution in Wales. More recent opinion polls show that 80% of the Welsh electorate accept or support the existence of the Assembly, with a narrow majority in favour of an increase in its powers. There was always sound support for devolution in Scotland, and opinion polls show that 75% of the population would like the Scottish Parliament to have more powers. In NI there is evidence of a general support in both communities for the idea of democratic structures in NI, rather than in London. This has to be weighed again much Protestant opposition to aspects of the Belfast Agreement. The use of law and constitutional change to make changes to people, communities and attitudes is not new. It is not always successful, and even if successful takes time. Wales and Scotland are likely to seek the devolution of more powers; Wales in particular is likely to want to move toward the Scottish scheme of devolution. Clashes with London, in particular over money, are likely. In Northern Ireland the fact that the institutions created are still operating is a success of a sort in 46

See the debate in the Assembly on July 3rd. 2002.

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PATRICIA LEOPOLD itself. However there is also concern that the legal rules regulating the composition of the new institutions may themselves prevent consociational government. There is also the reality in Northern Ireland that even if, post devolution, intercommunal relations have made some progress in the political and institutional spheres, they have not improved on the street - quite the contrary. All the devolved institutions, not only those in NI, have taken time to get into their stride. In all three devolved administrations there is the potential to respond to the needs of the local people. In areas such as language and promotion of equality, initiatives have been taken that perhaps would not have been possible before devolution. The real assessment will begin to be made when the Parliament/Assemblies start their second terms after the 2003 elections. The results of these elections will be important for all three countries. In the case of Northern Ireland they may determine whether the 1998 arrangements can continue; there is a real risk that extremists on both sides of the political/religious divide will make substantial gains, leaving the prospect of consociational government in tatters. 10. ADDENDUM In May 2003 elections were held for the Scottish Parliament and the Welsh Assembly. The Northern Ireland Assembly has been suspended since October 2002, and the Secretary for State for Northern Ireland announced that the elections scheduled for May 2003 would be postponed until autumn 2003. In the May elections the electoral turnout in both Scotland and Wales was significantly lower than had been the case in 1999. In Scotland there was a 49% turnout compared to a 59% turnout in 1999; in Wales the figures were 38% and 46%. In Scotland the Labour Party lost six seats, but remained the largest party. The Scottish National Party had had 35 seats after the 1999 election, but lost eight of these seats in 2003. The Greens now have seven members of the Scottish Parliament and the Socialists six members. The Scottish Labour Party and the Liberal Democratic Party reached an agreement to form a coalition government for the next four years. In Wales the Welsh Nationalists also lost seats; it now has twelve members compared to seventeen in 1999. The Labour Party has a slim working majority in the Welsh Assembly and announced that it would govern without the aid of the Liberal Democrats, who had been their coalition partners for three of the previous four years. 11. FURTHER READING The State and the Nations, The First Year of Devolution in the United Kingdom ed. Robert Hazell (2000), (Imprint Academic). The State of the Nations 2001: The Second Year of Devolution in the United Kingdom ed. A Trench (2001), (Imprint Academic). Agreeing to Disagree? A Guide to the Northern Ireland Assembly, ed. Robin Williams (2001) (The Stationery Office). Devolution by Evolution J. Wallace (2002) (London, Centre for Reform). 522

EXPERMINENTS WITH AUTONOMY IN THE UNITED KINGDOM SINCE 1998 Devolution in Context: Regional, Federal and Devolved Government in the European Union John Hopkins (2002) (London, Cavendish). Realising the Vision: A Parliament with a Purpose - An Audit of the First Year of the Scottish Parliament B.K.Winetrobe (2001) (London, The Constitution Unit).

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THE STATUS OF AUTONOMOUS TERRITORIES IN INTERNATIONAL ORGANIZATIONS: EXPERIENCES IN NORDIC AND CONTINENTAL EUROPEAN CO-OPERATION Elisabeth Nauclér1 This article explores, with emphasis on the autonomy of Åland, the experiences of the three Nordic autonomous territories in two areas of international co-operation, Nordic and continental European. The legal bases for these three autonomy systems differ but the international context is the same. The Nordic Council and Nordic Council of Ministers are forerunners in international co-operation regarding the representation of autonomous territories, while the European Union has no preparedness for accepting members that are not sovereign States. All three territories have the same representation in Nordic co-operation, whereas they have all experienced different treatment s in the European Union. The Nordic region consists of five independent States and three autonomous territories. The region has a total population of about 24 million but my presentation will focus on the three autonomous territories. They are not three islands, but several thousand islands with a total population of 130,000. These three small jurisdictions are very far from each other and have little in common. Their economies differ greatly. The Faeroe Islands and Greenland are almost totally dependent on fisheries. The main emphasis of economic development in the Åland Islands has traditionally been on shipping, agriculture and fishing. Today, the Åland Islands form a typical service economy with more than a million tourists visiting the islands every year and a transport sector that accounts for 45.5 per cent of the gross domestic product. The economy of the Åland Islands relies heavily on neighbouring areas (the Stockholm and Turku regions) and on contacts with them, whereas the Faeroes and Greenland are far from the Nordic mainland. This explains why one of them decided to remain outside the European Union, one seceded from it while one decided to join it but remain outside the tax union. They may be very different but they do have one thing in common; they are autonomous territories with home rule and legislative powers. They are full and independent members of the Nordic Council and the Nordic Council of Ministers, fly their own flags, and exercise certain other independent rights. 1. THE FAEROE ISLANDS The Sheep Islands, so called because when the ancestors of the present inhabitants first arrived, they found an abundance of sheep – the only survivors of an earlier settlement.2 The population amounts to 46,000, the land area totals 1,399 square 1 2

Head of Administration, the Government of Åland. A. Grahl-Madsen, ‘The Evolution of the Nordic Autonomies’, NTIR, 1985, p. 5.

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ELISABETH NAUCLÉR kms. and the name of the capital is Tórshavn. It is an archipelago inhabited by a clearly Nordic people. Despite long periods during which the written language was abandoned in favour of Danish for educational and official use, the Faeroese maintained a distinctive spoken language. In the 19th century, a new written language was created, but Faeroese was not permitted in education until 1937 nor recognised as a legal language until 1948.3 In 1380, the Faeroe Islands came under the rule of the joint Norwegian and Danish crown, and when the union was dissolved in 1814, the Faeroe Islands, along with Iceland and Greenland, came under the Danish crown. Home rule has its origins in the aftermath of World War II. When German forces invaded and occupied Denmark in 1940, British forces landed on the Faeroes, because they are strategically placed between Scotland and Iceland. During the war, when they were cut off from Denmark, they were obliged to govern themselves. They flew their own flag on their ships and it was recognised by the Allies. At the end of the war, the Faeroese were unwilling to return to their previous status and in 1948 the autonomy of the Faeroe Islands was established by regular Danish statutes. The wording of the preamble starts as follows: ‘In recognition of the special status, which, in national, historical and geographical respects, the Faeroes occupy within the realm . . .’. These statutes expressly reserve foreign affairs as the remit of the Danish Government. However, this does not mean that the Faeroe Islands and Greenland are necessarily included in treaties concluded by Denmark, nor has it prevented Denmark from concluding treaties concerning the Faeroes or Greenland separately. The Faeroe Islands have themselves been allowed to conclude agreements with foreign powers concerning matters within their autonomy, such as agreements concerning fishing rights in the respective economic zones.4 The Government of the Faeroe Islands now decides on practically all areas of policy apart from justice, monetary affairs, defence and foreign policy. In 1992, Denmark ceded to the Faeroes the management of natural resources, including what may be major oil deposits on the Faeroese continental shelf.5 Legislative power is vested in the Parliament – the Lögting, – and executive power is vested in the Government, the Landsstyrid. Danish suzerainty in the islands is represented by the High Commissioner, the Rigsombudsmand. 2. GREENLAND Kalaallit Nunaat, meaning ‘The land of the People’, is, like the Faroe Islands, part of the ‘Realm of Denmark’ and has a population of 56,000.6 The land area totals 2,166,086 square kms. and the name of the capital is Nuuk7. Greenland is no 3

J. Isherwood, The Nordic Autonomous Areas. Copenhagen: The Nordic Council of Ministers, 1997. 4 Grahl-Madsen, supra note 1, pp 6–7. 5 Isherwood, supra note 2. 6 Grahl-Madsen, supra note 1, p 7. 7 Isherwood, supra note 2.

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THE STATUS OF AUTONOMOUS TERRITORIES IN INTERNATIONAL ORGANIZATIONS archipelago. In fact it is often called ‘the biggest island in the world’, some eight times the area of the British Isles. The indigenous people – the Inuit – are ethnically very different from the Scandinavians; their kinfolk inhabit Alaska and the northern territories of Canada.8 Their language is also called Inuit. In 1397, Greenland came under the command of the Danish monarch at the time of the union that joined together Denmark, Sweden and Norway. Even though Greenland was not granted home rule until 1978 the issue of national sovereignty was settled in 1933 when the International Court ruled in a case brought by Denmark against Norway, which had occupied parts of eastern Greenland two years earlier. During World War II, the United States recognised Danish sovereignty and agreed to defend it until the end of the war. American bases were built to safeguard allied shipping and this defence relationship has continued under the bilateral Treaty on the Protection of Greenland.9 When the war was over the Greenlanders were no longer willing to accept the low level of investment and restrictive monopoly of the Royal Greenland Company. Under the new constitution approved by Denmark in 1953, Greenland ceased to be a colony but it was not until the 1970s that the movement for home rule took off and it was not achieved until 1979. Under the Home Rule Act, Greenland now decides on all areas of policy apart from nationality, justice, monetary affairs, defence and foreign policy. Accordingly, responsibility for Greenland’s vast raw material and for environmental protection is vested in the institutions of the territory.10 Legislative power is vested in the Parliament, the Landstinget, and executive power is vested in the Landsstyret. Danish suzerainty in the territory is represented by the High Commissioner, the Rigsombudsmand. 3. THE ÅLAND ISLANDS The Åland Islands are a demilitarised, neutralised and autonomous area of Finland. Their population is 26,000, and the land area totals 1,552 square kms. The name of the capital is Mariehamn. The Åland Islands are an archipelago consisting of more than 6,500 islands.11 The Ålanders have been Swedish-speaking since as far back as anybody can trace and are, therefore, part of the Swedish cultural heritage. Since Åland is a group of islands, its autonomy is considered to be territorial, even though it would also fit into the notion of cultural autonomy, as the Swedish language and culture constitute the foundations of it. Åland was a very old region of Sweden and had a Swedish population long before Finland was incorporated into the Swedish realm in the thirteenth century. The Ålanders, therefore, in addition to economic and geographic links, developed close social contacts with Stockholm, and the nearby coastal area of Sweden. The Åland Islands, together with Finland, belonged to Sweden until 1809, at which time 8

Grahl-Madsen, supra note 1, p. 7. Isherwood, supra note 2. 10 Ibid. 11 Ibid. 9

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ELISABETH NAUCLÉR Sweden, after losing a war with Russia, was forced to relinquish Finland, together with Åland, to the victor. When the Russian Empire started to disintegrate, but before Finland declared independence in December 1917, the Ålanders started to struggle for reunion with their traditional mother country, Sweden. A petition in favour of reunion was signed by 96 per cent of the resident Ålanders of legally competent age and conveyed to the King of Sweden. But the new-born state of Finland, which had been proclaimed by virtue of the principle of national self-determination, was not prepared to give up a part of its territory and was not concerned that a section of the population did not feel at home with their new-found statehood. After a dispute between Finland and Sweden, the Åland issue became international and, on a British initiative, was brought before the League of Nations in Geneva. In 1921, the League decided that the Åland Islands should belong to Finland but have autonomy that would guarantee their Swedish language and heritage. Ten states guaranteed Åland’s demilitarisation and neutralisation. In other words, Åland’s autonomy is of international standing, and has been used as an exemplar for solving minority conflicts throughout the world. Like the two other aforementioned autonomous territories, Åland has legislative competence in areas such as social and health care, the environment, trade and industry, culture and education, transportation, postal services, policing, radio and TV broadcasting and local government, but relatively little authority to levy taxes compared with the other two.12 Legislative power is vested in the Parliament, the Lagtinget, and executive power is vested in the Landskapsstyrelsen. Finnish suzerainty in the islands is represented by the Governor, the Landshövding. 4. NORDIC CO-OPERATION Only a few years after World War II, in 1952, the Nordic Council was created as a forum where representatives of the four members (Denmark, Norway, Iceland and Sweden) could exchange opinions and compare experiences. Finland joined in 1955.13 The Nordic Council was founded as a parliamentary forum for co-operation among the five independent Nordic countries. It should be noted that the Nordic Council is not a parliament in the orthodox sense of a deliberative organ with powers, i.e. with the formal power to enact laws that are binding and other prerogatives. Nevertheless, it is considered one of the key players in the process of developing co-operation on legislation. It cannot demand that its recommendations be implemented, nor is it directly elected by the people, unlike the European Parliament, but it has still achieved many of its goals.14 The Nordic Council has been a precursor for other international organisations in the context of autonomous territories. The autonomous territories are not observers. 12

Ibid. Y. Tivéus and K. Emborg (eds.), Nordic Reflections (Malmö, Ahlqvist & Co, 1995). 14 D. Arter, The Nordic Parliaments – a Comparative Analysis (C. Hurst & Company, London, 1983). 13

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THE STATUS OF AUTONOMOUS TERRITORIES IN INTERNATIONAL ORGANIZATIONS Instead, their parliaments choose members of the Council on the same terms as the sovereign States, but this was not the case in 1952. Initially, Nordic co-operation was not based on any international treaty but on national decisions taken by the five participating states. The need for a formal agreement did not arise until 1962 when the Treaty of Cooperation embracing Denmark, Finland, Iceland, Norway and Sweden (the Helsinki Treaty) entered into force.15 The autonomous territories did not participate in the work in either a formal or informal capacity at that time, but thanks to Danish generosity the Faeroe Islands were brought in as part of the Danish delegation, a precedent which later helped the Åland Islands. It was a Danish government proposal in 1967 which raised the issue of formal representation for Åland and the Faeroes. The proposal resulted in a report from a committee (known as the Kling committee) suggesting an amendment to the Helsinki Treaty. Before that, the Faeroe Islands already had a representative through the Danish delegation, whereas Greenland had not yet obtained autonomy. Eventually, in 1970, the Helsinki Agreement was modified and the Faeroese Lögting could from then on elect two representatives who became part of the Danish delegation. Correspondingly, Åland’s Landsting could elect one representative who became a member of the Finnish delegation. The number of Council members was increased from 73 to 78. The governments of the respective States were also represented in the delegations. The government representatives have the right to speak in the Council’s plenary assembly, but have no vote. From 1971, one representative of Åland’s Landskapsstyrelse was included in the Finnish delegation and one representing the Faeroese Landsstyre was included in the Danish delegation.16 The Nordic Council of Ministers was established in 1971 to implement cooperation at a governmental level. The autonomous areas were not formally included in this co-operation but continued their struggle, and in 1976, as a result of a joint preliminary request, the governments of the Faeroe and the Åland Islands were given the right to send representatives with observer status to meetings of the Council of Ministers when questions relating to the Faeroe and the Åland Islands were being discussed. Later, the Faeroe Islands raised the question of equal representation several times. In 1980, the Danish Government submitted a proposal suggesting that Greenland (which had in 1979 attained self-government), the Faeroe Islands and the Åland Islands should have independent representation in the Nordic Council. To study the matter, a committee (known as the Petri committee) was appointed. It consisted of the executive body of the Nordic Council and the Ministers of Justice of the Nordic countries. The report established that the status of the autonomies in Nordic cooperation should be consolidated.17 The Report culminated in 1983 in extended rights for the three autonomous territories, including 15

Treaty of Cooperation between Denmark, Finland, Iceland, Norway and Sweden (the Helsinki Treaty) signed 1962 and amended later. Copenhagen: Nordic Council and Nordic Council of Ministers, 1999. 16 F. Wendt, Nordic Cooperation (Nordic Democracy, Copenhagen, 1981) p.658. 17 G. Lindholm, ‘The Right of Autonomous Regions to Participate in Nordic Co-operation’, NTIR (1985), pp. 79–84.

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ELISABETH NAUCLÉR participation in the work of the Nordic Council of Ministers.18 The three Parliaments now had the right to elect two members each to the Council and as many government representatives as they wished to the Council of Ministers. Article 47: ‘The Council consists of 87 elected members, representatives of the Nordic Governments and representatives of the Home Rule Governments of the Faeroe Islands and Greenland, and the Regional Government of the Åland Islands. The Danish Parliament appoints sixteen of the elected members, the Finnish Parliament eighteen, the Icelandic Parliament seven, the Parliaments of Norway and Sweden twenty each, the Parliaments of the Faeroe Islands and Greenland, and the Legislative Assembly of the Åland Islands two each . . . The Governments, including the Home Rule Governments of the Faeroe Islands and Greenland and the Regional Government of the Åland Islands, may appoint from among their members the number of representatives they wish to send.’

These members formed separate delegations but were also attached to the state delegations. Article 48, paragraph 1 and 2 ‘The national delegation of Denmark consists of the members elected by the Danish Parliament and of the representatives appointed by the Danish Government together with the delegation of the Faeroe Islands and Greenland referred to in the following paragraph . . . The delegation of the Faeroe Islands consists of the members elected by the Parliament of the Faeroe Islands and by the representatives appointed by the Home Rule Government. Greenland’s delegation consists of the members elected by the Parliament of Greenland and by the representatives appointed by the Home Role Government. The delegation of the Åland Islands consists of the members elected by the Legislative Assembly of the Åland Islands and by the representatives appointed by the Regional Government.’

As the autonomous territories were given only two seats, they could not have seats in all the different Committees of the Council. Article 27 of The Rules and Procedures of the Nordic Council was, therefore, changed in a generous way that made it possible for their representatives to attend and speak at the meetings of the Committees in which they did not have members.

18

Färöarnas, Grönlands och Ålands representation i Nordiska rådet, Stockholm, NU 1982:6.

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THE STATUS OF AUTONOMOUS TERRITORIES IN INTERNATIONAL ORGANIZATIONS The most important change was that the autonomous areas were granted the right to participate in the work of the Council of Ministers. This unique arrangement came about through another change in the Helsinki agreement. Article 60, paragraph 2 ‘The Home Rule Governments of the Faeroe Islands and Greenland and the Regional Government of the Åland Islands take part in the work of the Council of Ministers.’

Decisions in the Nordic Council of Ministers are based on consensus but only require the acceptance of those countries that are covered by the decision. Article 62, paragraph 1: ‘The Council of Ministers is quorate when all the Nordic countries are represented on the Council of Ministers. In respect of matters of exclusive concern to certain countries, however, only those countries need be represented.’

Eventually, the question was raised whether all eight governments had to agree on a certain issue. After long deliberation, it was decided that the consent of the autonomous areas was not required. On the other hand, decisions would not be binding on the autonomous areas if the issue fell under their areas of legislative competence and the home rule government in question had not given its consent. This procedure is usually labelled ‘the right of consent’. Article 63, paragraph 2 ‘Decisions made under this Treaty are binding on the Faeroe Islands, Greenland and the Åland Islands insofar as they accede to the decision in accordance with their statutes of self-government’.

The Åland Islands, as well as the other autonomous areas, have frequently exercised this right. The governments of the autonomous regions have also obtained the right to make governmental proposals under the same conditions as the governments of the sovereign States (Article 55). As already stated, in comparison with other international intergovernmental organisations, the Nordic Council is regarded as something of a model. Whether at the Council of Europe or under the Treaty of Rome, the Treaty of Paris or the Statute of the Inter-parliamentary Union, non-sovereign territories do not participate in these inter-parliamentary bodies. Up until now, national minority groups, or their authorities, had only been able to obtain some form of observer status. Subsequently, the work of the Council has changed and been restructured but the fundamental principles are still valid. The prime ministers have acquired a greater role and the heads of governments of the autonomous territories are also invited to their meetings, which are held in conjunction with the Council sessions. The general structure of Nordic co-operation must be viewed as a good example of what international co-operation can accomplish. Primarily, it serves as a good 531

ELISABETH NAUCLÉR example for co-operation between other sovereign states with minorities, autonomies or regions with cross-border problems. The Faeroe Islands have always insisted on contributing to the common budget on the same terms as the sovereign states. When this idea was first aired Åland’s fiscal regime (called the fiscal adjustment) did not allow for such contributions – neither does the present system (the lump sum) – as the Åland Government may not directly, only indirectly via the Finnish budget, contribute to international organisations. Åland still does not contribute on a par with the Faeroes and the sovereign nations. The Faeroe Islands have recently expressed a wish to take part in Nordic cooperation on equal terms with the independent states. Only in this sense are the delegations of the autonomous territories not treated as the delegations of the independent states are, the latter in accordance with the Helsinki Treaty. Article 48, paragraph 3: ‘The term ‘delegation’ as used in Article 58, paragraph 2, shall be understood to mean the national delegation.’ Article 58, paragraph 2: ‘For each financial year, the Presidium shall determine how the joint expenditure is to be apportioned among the delegations.’ 5. THE SAMI PEOPLE There is one more group of people who should be mentioned in this context and that is the Sami people, previously known as the Lapps. There are approximately 100,000 Sami, the majority of them in Norway. They are recognised as an ‘indigenous people’ who lived in their home areas before the arrival of the majority populations. They do not speak one standard language but ten varieties of Sami, which are considered dialects, even though North Sami and South Sami are sufficiently different from one another so as to be mutually incomprehensible. As the Sami people are scattered around in three (or four if Russia is included) sovereign States, they have not acquired any form of territorial autonomy but do enjoy personal autonomy. They have different rights in the four different countries. They are divided in the sense that some of them are inside the EU (those in Finland and Sweden) and some are outside it (those in Norway and Russia) but they are of one accord in the struggle to preserve their Sami identity. In Sweden and Finland Sami has been granted the status of official language and in Sweden, Finland and Norway the Sami have their own democratically elected representative council. The Sami people have no special status within the Nordic Council or Nordic Council of Ministers although they are invited as observers to the plenary meetings of those two bodies and to certain other functions. However, there is a Nordic Sami Institute operated under the aegis of the Nordic Council of Ministers. The institute’s research projects include research into the Sami language and its variants and into the development of small industries that reduce dependence on reindeer husbandry, the traditional and dominant Sami means of livelihood. The councils are campaigning for representation in the Nordic cooperative bodies alongside the autonomous areas.

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THE STATUS OF AUTONOMOUS TERRITORIES IN INTERNATIONAL ORGANIZATIONS 6. THE CONTENT The foregoing was a description of the structure of Nordic co-operation, but what has been achieved? Has it not been very complicated with so many different parliaments and governments demanding special treatment and special rights? Of course such matters are more easily handled in ethnically homogenous nation states. From a rational point of view it would be both easier and less expensive for Denmark and Finland if they did not have these autonomous islands – but I claim they would be socially and culturally poorer without them. Everybody benefits from a diversified society with different languages and cultures. Nordic co-operation is particularly tangible in the fields of language, culture and education. Both the Faeroe Islands and Greenland have Nordic Houses, the Åland Islands have a Nordic Institute. Their facilities are intended to serve mainly as a venue for cultural activities, while stimulating cultural exchanges and Nordic contacts. They have also strengthened cultural life on the islands. With the exception of Finnish, Sami and Inuit, the Nordic languages can be traced to the same roots. We are fighting to preserve the closely related languages that we have; therefore, regardless of the fact that it maybe somewhat easier for many of us to speak English in Nordic-co-operation, our ability to converse using Danish, Norwegian and Swedish boosts our sense of solidarity. For an area like the Åland Islands, which have a language entirely different from the language of the majority in mainland Finland, and are closely linked to Sweden historically and geographically, Nordic-cooperation has been of vital importance. Today, more than 70 per cent of students from Åland study in Sweden after graduating from schools on the islands. Co-operation among the Nordic countries in the United Nations, the European Union or in other international contexts is the result of well-organised internal coordination. For all the autonomous areas, Nordic cooperation has been their best way of getting out and into the international arena. Sometimes it is their only route to foreign policy and to make contacts that they would never otherwise have established without this international framework. In the Åland Islands, we have been able to take part in the cooperation between Finland and Sweden, and also establish our own dialogue with Sweden on matters relating to joint problems – mainly of little consequence to Sweden – but of major importance to the Åland Islands. In the Nordic countries legislation has been passed enshrining the rights of cultural minorities to maintain and foster their own cultural practices and traditions. The two Nordic indigenous peoples – the Sami and the Inuit – as well as linguistic minorities, such as the Faeroese, are covered by these legislative rights. 7. THE NORDIC AUTONOMOUS TERRITORIES IN A EUROPEAN CONTEXT The inhabitants of the autonomous territories in the Nordic countries were used to direct representation. Members of their parliaments were members of the Nordic Council and their governments had to give their consent to decisions made by the 533

ELISABETH NAUCLÉR Council of Ministers, otherwise they were not bound by the decisions. As already stated, Nordic cooperation is considered to be a forerunner in this sense, but what of that supranational organization, the European Union? Without hesitation I would say that the European Union is definitely not a model to be copied, that it needs to develop a pattern for at least a somewhat adequate treatment of small jurisdictions. The European Union of today does not recognise any other members than independent states. That, in an international context, is a very rigid system and especially so in comparison with what the Nordic autonomies were accustomed to. The system has so far not been seriously questioned as those Nordic autonomies that could have challenged it in accordance with their constitutions chose to remain outside, except for one, namely the Åland Islands. 7.1. The European Union When the European Community was formed forty years ago, sub-state autonomy was, on the whole, an exception in the six founding countries. Only in the Federal Republic of Germany, about ten Länder, and in Italy four regions, constituted substate autonomies. Later, others were added, i.e. the three autonomous regions in Belgium. With the accession of Spain and Portugal, 17 autonomous communities and two autonomous regions were incorporated. German reunification and Austria’s incorporation raised the number of Länder.19 All these entities had one thing in common. They could not remain outside the EU when their mother states joined. Two exceptions not previously mentioned, the Isle of Man and the Channel Islands, did not join the EU. 7.2. Greenland Denmark, including Greenland which had not yet obtained autonomy, joined the EEC in 1972 following a referendum in which 70 per cent of Greenland’s electorate voted against EEC membership but were obliged to comply with the Danish decision. For Greenland, the decision meant that its waters became part of EEC waters and foreign fishing fleets would have the right to fish in them. After having obtained home rule, Greenland organised a new referendum and the ‘no’ result was repeated. In 1985, Greenland left the EEC but with an OLT provision (Overseas Countries and Territories Agreement).20 The basis for accepting the secession of an autonomous territory was the fact that Greenland did not enjoy home rule when Denmark joined the EEC. Greenland at that time did not have the option of joining or staying outside. The secession of Greenland instantly reduced the land area of the EEC by half.

19

I. Bullain, ‘Autonomy and the European Union’, in M. Suksi (ed.), Autonomy: Applications and Implications (The Hague: Kluwer Law International, 1998). 20 Home Rule in Greenland, Ministry of Foreign Affairs, Copenhagen, 2000.

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THE STATUS OF AUTONOMOUS TERRITORIES IN INTERNATIONAL ORGANIZATIONS 7.3. The Faeroe Islands Under the Danish Accession Treaty with the EEC, the Faeroe Islands were given an opt-in/opt-out option, which means that they could decide whether or not to join the EU. According to the Act of Accession, the Danish Government could declare that Treaties would apply to the Faeroe Islands within three years. The reason for the long period was that the Faeroe Islands’ economy was entirely dependent on fishing and there were major uncertainties regarding the future direction of the EEC’s Common Fisheries Policy. Two years later, in a referendum, the Faroes decided to reject membership of the EC.21 7.4. The Åland Islands In 1994, the time came for the Åland Islands to decide upon their fate as Finland was in the process of joining the EU and in accordance with the Act on Autonomy of Åland the Ålanders had the option to remain outside, by not giving their consent when the Accession Treaty was to be passed.22 Section 59, paragraph 1: ‘If a treaty that Finland has concluded with a Foreign State contains a provision contrary to this Act, the provision shall enter into force in Åland only if so provided by an Act enacted in accordance with sections 67 69 of the Parliament Act under section 69 of this Act.’

Not only had the Åland Islands the possibility to remain outside they also had the right to be informed of the course of the membership negotiations. Section 58, paragraph 2: ‘The Government of Åland shall be informed of the negotiations on a treaty with a foreign State if the matter is subject to the competence of Åland.’ A solution that left the Åland Islands on the outside would certainly not have appeared attractive to Finland. The Åland Islands had managed to gain an advantageous negotiating position and Finland chose to assist the islands in negotiating a solution that would convince the islanders that membership was acceptable. After long discussions and having carefully scrutinised the different possibilities, the outcome was that the Åland Islands were given the same choice as the Faeroe Islands, i.e. the opt-in/opt-out option. Two referenda were held; the first concerning the question whether Finland should join or not, and the second whether the Åland Islands should join or not. Both referenda produced a yes for membership. The solution meant a separate Protocol for the Åland Islands, making it a member of the EU’s customs union but not of the tax union. In addition, rights pertaining to the Right of Domicile (an indigenous right) remain in force even in 21

N. Fagerlund, ‘The Special Status of the Åland Islands in the European Union’, in L. Hannikainen and F. Horn (eds.) Autonomy and Demilitarisation in International Law: The Åland Islands in a Changing Europe, (the Hague/London/Boston, 1997). 22 Act on the Autonomy of Åland, FFS 1114/1991, Unofficial translation, Mariehamn 1997.

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ELISABETH NAUCLÉR cases where they infringe community rules. Among other provisions, the protocol determines that, with reference to Åland’s special position under international law, the islands enjoy certain exemptions from treaties that are fundamental to the European Union. This means that the articles of the Treaty of Rome shall not infringe on Åland’s continued right to limit – on a non-discriminatory basis – the rights of physical persons who do not have the Right of Domicile as well as the rights of juridical persons to acquire real property without permission. Åland may also limit the rights of physical persons or juridical persons who do not enjoy the Right of Domicile to set up a business enterprise or to offer services without permission from the Åland authorities. The aim of the derogation was to maintain a viable local economy in the islands, and so the huge ferries operating between Finland and Sweden were allowed to retain their duty-free regime and also provide the islands with a necessary transportation system. The legal construction, with the Åland Islands considered as a third territory outside the EU’s tax union, was not obtained on an Åland request but rather as a result of an effort within the EU to reach an acceptable solution. Leaving outside the community an island group as dependent on contacts and communications with their surrounding areas as the Åland Islands are would not have been a viable solution. The proposed derogation enabled the Ålanders to vote for accession of the Åland Islands to the EU with the convincing majority of 74 per cent. At that time, within political circles, it was expected that autonomy would be strengthened through cooperation with the various agencies of the Union. Among other things, it was imagined that due to its special position within Finland, Åland would be able to negotiate directly with Brussels on matters relating to Åland and over which the Government has authority, enabling the islands to act more or less independently of Helsinki.23 As already pointed out, the Åland Islands form the only jurisdiction that had the option of remaining outside the Union when the mother country became a member and yet chose to join, thereby making its position unique. The Åland autonomy has expanded over its 80 years of existence, but through joining the European Union the Åland Islands surrendered competence to Brussels, as did Finland. The EU only knows states as full members, and has a way of compensating them for their loss of power and influence; i.e. they obtain seats in the European Parliament and they can appoint one Commissioner each. In the case of a jurisdiction such as the Åland Islands, not being an independent state, there is no such mechanism. The Åland Islands received just one seat in the Committee of Regions, a body consisting of a variety of local authorities, some with and some without legislative authority. The Committee exercises purely advisory powers and does not constitute an EU institution in the formal sense. Even though access to information and contacts with other legislative regions should not be underestimated they do not constitute any form of compensation for the delegation of legislative competence from Mariehamn 23 C. Jansson, ‘Åland’s Prospects for Development in the European Union’, in H. Jansson and J. Salminen (eds.) The second Åland Islands Question, Autonomy or independence? (Mariehamn, 2002).

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THE STATUS OF AUTONOMOUS TERRITORIES IN INTERNATIONAL ORGANIZATIONS to Brussels. In order to compensate for the loss of legislative competence and influence on matters within the sphere of autonomy, the Act on the Autonomy of Åland was amended in connection with the accession. 24 A new chapter was added to the Autonomy Act of Åland. Chapter 9a provides that the government of Åland shall be notified of matters under preparation in the institutions of the European Union, if the matters are within the legislative power of Åland or may for other reasons be especially important to it. Section 59a: ‘The Government of Åland shall be notified of matters under preparation in the institutions of the European Union, if the matters are within the legislative power of Åland or may for other reasons be especially important to Åland. The Government of Åland shall have the right to participate in the preparation of the matters referred to in paragraph 1 within the Council of State.’

The provision does not deal with the problem of the member State and the autonomous region disagreeing on the national position. But the solution is quite obvious; the EU only knows independent states as members and there is no satisfactory way of resolving an issue concerning a state when there is a division of legislative competence between two parliaments, and not devolution from one body to the other. Over time, the Autonomy Act has proven not to be sufficient compensation for the loss of sovereignty, the autonomy is considered to have shrunk and an amendment to the Autonomy Act has recently been submitted to the Finnish Parliament with the aim of rectifying the shortcomings in the present system. The outcome remains to be seen.25 Furthermore, the Åland Government shall formulate Finland’s national position on those parts of an initiative that fall under the legislative power of Åland when the EU’s common policies are being applied to Åland. The question concerning Application of a Common Policy of the European Community is regulated in the following extract, where it is stated that: Section 59 b ‘In so far as the matter belongs to the legislative power of Åland, the Government of Åland shall formulate the national position of Finland relating to the application of a Common Policy of the European Community in Åland.’

But is it possible for a member state to remedy shortcomings in the procedural system of an international organisation? The answer is no. It is not possible as long as the system remains unable to comply with the undertakings and obligations concluded by the member states under national constitutional law or, as in the case 24 25

Act on the Autonomy of Åland, FFS 1556/1994, Unofficial translation, Mariehamn 2000 Government Bill 18/2002.

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ELISABETH NAUCLÉR of the Åland Islands, under international law. At present, the EU is unprepared for accommodating autonomous members. The Nordic Council and Nordic Council of Ministers are said to be forerunners regarding the participation of the autonomous areas. Why is that so? It is important for central governments to understand that foreign relations are not a sacrosanct and inalienable attribute of sovereignty but can be devolved to local or autonomous governments.26 Could the reason be that the work of the Nordic Council and Council of Ministers is of little importance and can therefore be shared with the autonomous regimes, while the European Union is preoccupied with important matters? That could of course be the answer, but on the other hand one recalls that the members of the United Arab Emirates (UAE) were, according to Article 123 of their Constitution, permitted to retain their individual memberships in the Organization of Petroleum Exporting Countries, (OPEC) most probably because the organisation is of such vital interest to them.27 The three autonomous territories in question are considered as subjects according to international law in the context of the Helsinki Agreement, but not in a European Union context. This resulted in one autonomous area joining the EU, one withdrawing from it and one joining with certain derogations. Yet they are all members of the Nordic Council and the Nordic Council of Ministers on an equal footing. 8. VIEWS ON THE FUTURE Is there a future for the autonomous territories within the European Union, or should they try to distance themselves from it? The European Union is a supra-state organisation that does not recognise the construction of sub-state autonomy among its members. The autonomous territories do not have the right of participation on an equal footing with the independent states, or to be represented in the decisionmaking processes. The Treaty of Rome makes no mention of autonomy and the question of division of power between a state and an autonomous area is an internal issue for each state to resolve under its domestic regulations. The European Court stated in a case against Italy that, ‘[w]hile each Member State may be free to allocate areas of internal legal competence as it sees fit, the fact still remains that it alone is responsible towards the Community under Article 169 for compliance with obligations under Community law’.28 The concern of the Court in this case was to stress that although member states might devolve matters of transposition and enforcement of European law to the regional level of government, it is the state itself and not the region that is legally bound to uphold Community law.29 The enabling of regional-level governments to bring an action for annulment under Article 230 on the same terms as those recognised for member states has been widely discussed, 26

H. Hannum, ‘The Foreign Affairs Powers of Autonomous Regions’, NTIR (1988), p.273. Ibid., pp. 278−279. 28 Case C-33/90 Re Toxic Waste: Commission v. Italy (1991) I ECR 5987. 29 N. Burrows, ‘Nemo me impune lacessit, Scottish Right of Access to the European Court(s)’, unprinted article, Glasgow 1999. 27

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THE STATUS OF AUTONOMOUS TERRITORIES IN INTERNATIONAL ORGANIZATIONS and a proposal on the matter has been put forward. This example shows the attitude of the European Union towards autonomous areas. In the Åland government’s response to the White Paper on Governance, the government is pinpointing shortcomings in the EU, and airing worries without outlining credible alternatives.30 The EU simply does not recognise the existence of autonomy and the task of reforming the system seems overwhelming for a unit as small as the Åland Islands, even if there is sympathy for the concerns expressed in the response. So far, not even Finland, a member state, has been able to provide the necessary compensation within the framework of the Finnish legal system. There is a need for reform of the structure of the European Union if the Union is to be able to fulfil its undertakings concerning the Åland Islands and be an option to consider for those autonomous areas that have so far not joined it, although their mother states have done so. The response to the White Paper on Governance further states that, ‘[r]ecognition of autonomy in the same way as within the Nordic Council and the associated Helsinki agreement is, however, not practicable under the existing treaties’. Dr Claudio Scarpulla states, ‘[i]t will be up to Ålanders to choose whether to insist on the path of European integration or defend their autonomy and Swedish character. So far they have succeeded in combining both possibilities. In the near future other stringent choices might emerge. But the real success of a form of autonomy rests on its ability to renew itself in harmony with external 31 developments.’

When the Åland Islands joined the EU a British journalist wrote, ‘[t]he Ålanders have to carve out a place for themselves on the map of Europe’. I think that such an endeavour would be unproductive, unfortunately, as long as the structure of the EU and its political approach to autonomous areas remain unchanged.

30

COM/2001 428 final. C. Scarpulla, The Constitutional Framework for the Autonomy of Åland: A Survey of the Status of an Autonomous Region in the throes of European Integration, Meddeland från Ålands högskola nr 10, Mariehamn, 1999, p.91.

31

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MINORITY RIGHTS AND FORMS OF AUTONOMY IN SOUTH ASIA Ranabir Samaddar1 I. THE ETHICAL AND POLITICAL QUESTION In South Asia as in many other parts of the world today, what engages the attention of international relations experts, policy makers, regional and national elite and the global managers of peace is the issue of national self-determination. Disobeying the established borders of states and the established states-system in the region, the issue of self-determination raises its head in every discussion on war and peace and puts to disarray even the best-laid plans for order in the region. Enormous confusion thus prevails. Is it a case of external linkages to internal conflicts, or a case of kin state as the problematic? Or, is the phenomenon of the assertion of the right to selfdetermination an instance of cross fire insurgency, where the issue of selfdetermination arises as a result of diplomacy that takes the form of low level support by the neighbouring states to insurgency wars? Or, is it an unsolved problem relating to the minority groups in the process of nation building – a case of failure of autonomy arrangements? In the absence of a universal minority rights treaty, which incorporates a right to autonomy, the right of self-determination often provides the route to autonomy for minority groups, though in a limited legal view this right is available to ‘people’ and not to ‘minority’. The trouble to the states-system is thus compounded when a ‘minority’ refuses to see itself as a minority, refuses to accept that status, and claims the status of a people and thus the right of self-determination – not merely ‘internal’ but ‘external’ also. However, the fundamental question remains– is the right of self-determination over when the process of de-colonization and of nation formation is completed?2 What happens when it is argued that this is not complete, that a right of a nation to form itself cannot block a similar right of another nation? All these questions go beyond the issue of right, and point to the basic issue – whose self, autonomy for what and from whom, and the right to determine what? I want to make clear at the outset what I am pushing for here, namely, a thoroughly critical approach to international politics. By critical approach I mean above all critiquing the underlying assumptions of the existing ruling paradigm in order to show the possibility of an ethical argument based on justice, trust, and 1

Director, Peace Studies Programme, South Asia Forum for Human Rights, Kathmandu. For details of the international legal arguments both in favour of and against extending the right to self-determination, see G. Gilbert, ‘Autonomy and Minority Groups – A Legal Right in International Law?’, paper for the Seventh Session of the UN Working Group on Minorities, E/CN.4/Sub.2/AC.5/2001/CRP.5, 5 March 2001. 2

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RANABIR SAMADDAR understanding, and capable of challenging the realist domination. The realist paradigm is plainly unequipped to face the issue of state-formation, nation building and the issue of self-determination of peoples and nations. Yet, a critical approach cannot stop short at critiquing the realist assumptions only. The criticism must go also into an analysis of the international ethical theory also whose theoretical roots are in the current works in the field of Anglo-American philosophical ethics that bases itself on a defence of liberal values and judgement of what is right and wrong. This essay however does not have that scope. But readers can see in the course of reading this article, how my arguments here run different from mainstream ethical arguments on the issue of minority rights, self-determination, and provisions of autonomy. My arguments of ethics are conditioned by historical realities of the issues of justice and reconciliation. The need to take a historical view of the matter is more because moral communitarian argument often fails to provide a satisfactory ground of judgement on the issue of self-determination. Mill’s idea of a people’s right of selfdetermination and the liberal idealist gloss in Woodrow Wilson’s vision had failed in providing a criterion of what was just and unjust in wars of self-determination. The question that faced them and still faces us is: if the nation-state as the mode of self-determination is the embodiment of the ethical value of self, then is there any ground for intervention for or against another nation’s right to self-determine? What is then just and unjust according to the ethical basis of the collective right? What is the source of the ethical status of the collective right? And how does one combine the normative character of the right of self-determination with other applicable communitarian norms of international politics?3 To the question therefore posed at the outset, if morality as opposed to realism should guide international politics, the answer is, like the realist assumptions, the ethical theory also fails to address the question satisfactorily. We must therefore go beyond the tired debates about realism and morality, and ask in the context of our present discussion, whose self and determination of what?4 In asking that question, we are not only discussing the politics of empowerment of communities or groups, known today as collective rights, but facing also the ineluctable historical question of power relations in global politics. If the experiences of the last hundred years of the history of South Asia are remembered, the ramifications of the question posed will be clear, as will be obvious the theoretical deadlock. If a human individual is the locus of self-determination (this is the basis of popular sovereignty and liberal democracy), how does this lead, 3

On this see M. Walzer, Just and Unjust Wars – A Moral Argument with Historical Illustrations (Basic Books, New York, 1977). For a critique of Walzer’s exoneration of Israel’s aggressive wars, R. Falk, ‘The Moral Argument as Apologia’, The Nation, 25 March 1978, pp. 341–343; N. Chomsky, ‘An Exception to the Rules’, Inquiry, 17 April 1978, pp. 23–27; and E. W. Said, The Question of Palestine (Vintage Books, New York, 1992), pp. 205–207. 4 Kimberly Hutchings asks this in Hutchings, International Political Theory (Sage Publications, London, 1999), Chapter 5.

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MINORITY RIGHTS AND FORMS OF AUTONOMY IN SOUTH ASIA as it does, to the recognition of the state as the goal of determination? Or, how does it lead, as it does, to the denial of other individuals to determine the destiny of their selves, other selves? On the other hand, if nationality is the locus of selfdetermination, then should this be the site on which complex issues of forms of autonomy, right of nationalities to statehood, international intervention to enforce the global norms of self-determination or political respect of cultural differences would be judged? Philosophical suppositions are not enough. For, we do not have in this world fixed accounts of rationally acting ‘self-determining selves’.5 International ethical life is conditioned by several factors such as, the highly individualized discourse of human rights, the ‘dangerous liaison’ of global forces cutting the state off from underneath and the right to self-determine, and the hierarchy in epistemological values of different selves. These are all products of the history of the last two hundred years, and the ethical (much less the realist) argument cannot suddenly wake up one day to the issue and assume that this history is simply not there. Embedded in social, economic, political and institutional processes, the contemporary discourses on the right of self-determination can be only ambiguous. Let us take an example from the recent history of the Indian sub-continent. Muhammad Ali Jinnah invoked the principle in 1940 when he claimed the right of the Muslims to self-determination. In his presidential address in Lahore in 1940 he said, ‘Babu Rajendra Prasad . . . only a few days ago said, “Oh, what more do the Musalmans want?” I will read you his words. Referring to the minority question, he says: “British would concede our right of selfdetermination surely all these differences should disappear”. How will our differences disappear? . . . The word ‘nationalist’ has now become the play of conjurers in politics. . . . The problem of India is not of an inter-communal but manifestly of an international character, and must be treated as such. So long as this basic and fundamental truth is not realized, any constitution that may be built will result in disaster and will prove harmful not only to the Musalmans, but also to the British and Hindus... Musalmans are not a minority . . . Musalmans are a nation according to any definition of a nation, and they must have their homelands, their territory and their State.’6

Today we have two strange reactions to that event. One, is a reaction in the form of amnesia, as if the formation of Pakistan had nothing to do with the internationally 5

Ibid, p. 123. Reprinted in M. Hasan (ed.), India’s Partition – Process, Strategy and Mobilization (Oxford University Press, Delhi, 1993), pp. 44–58. 6

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RANABIR SAMADDAR recognized right of self-determination. That was a nightmare, which the nations in South Asia are determined not to allow to be repeated. For how can a religious denomination become a certificate of a people to self-determine? But ironically, the second reaction, contrary to the first, is that today religious denomination as one of the certificates of popular self-determination has become ‘natural’, in other words the principle has been successfully naturalized. It is important to note this ambiguity. In the discourse of state-formation, the right of a nation to statehood cannot be denied. But the state discourse being a hegemonic one cannot allow little discourses of nationhood. This ambiguity leads to a naturalization of the principle, beyond the ‘pale of law’, the ‘ethics of cosmopolitanism’, and even beyond the pale of collective rights – the principle to be decided as one decides of nature, beyond reason, assuredly in the horizon of given. This naturalization, a product of state discourse, prevents a rigorous investigation of the question – of which self, demanding what? It is important to note the phenomenon of naturalization of the principle for another reason. Clearly when the established states cannot prevent other (emerging) nations from demanding statehood, it shows that the little discourses are not as powerless as thought to be. The result is a tolerance, a coexistence of discourses of state-nations and non-state nations – a strangely simultaneous presence of law acknowledging the right of people to selfdetermination and the legal assertion of state sovereignty and its territorial integrity. In such a historical situation characterized by the anxiety of the self to determine its future, what besides ambiguity can be the mark of the time? We have here a return to the age of natural right, difficult to say whether it is regression, a natural right that need not be defined, but best left to authority to be defined, sanctified, authorized, institutionalized and executed. In short, what theorists will not admit is that naturalness, that is to say ethicalness, of a principle is proved by ambiguity, and therefore it calls for reinforcement by authority. The proponents of selfdetermination will be last to admit that, for rights at the end are justified by the principle of natural justice. Therefore, in the same historical moment the right can be invoked on the basis of naturalness, at the same time demanding reinforcement by authority, in this case, mostly international authority. We are indeed living in strange times where historical determination appears as principles of high moral ground. The principles of openness, and what Charles Taylor terms as ‘recognition’, are therefore not abstract principles, but ones that are in dialogic relation with contemporary world order. The ethic of determination has to be therefore concrete and take into account the contents of both nation and determination. There is no settlement in advance, no ground for an idealized ontology for a principle, no transcendent international ethics, and no defence of a transcendent authority. In other words, what we need in this age of self-determination is not a normative judgement, but the genealogy of that norm, as it exists in the modern power structure. The implications of this argument for this region (probably elsewhere also) are great and need to be mentioned even if briefly, before we see how polities of the region have tried to subsume the right of self-determination in the principle of 544

MINORITY RIGHTS AND FORMS OF AUTONOMY IN SOUTH ASIA autonomy and in several institutional forms of autonomy. We can speak of ten implications. First, the experiences of one partition (1947) and one war of self-determination (1971) have made the discourse of state-formation aware of the cracks and faultlines, and have impelled the official discourse of the state in this region to accept devolution of power as an important part of it. Second, each cry for self-determination is no longer judged in terms of nation building but in the mirror of territorial integrity. ‘Nation’s geo-body’, as the Israeli political scientist Adriana Kemp calls it, produces its own discourse that overwhelms the discourse of the state, and all other concerns of the state become subservient to the concerns of the nation’s geo-body.7 Third, as in India, group rights are acknowledged solely as cultural rights, and all economic, political and democratic substance of governance is distanced from the grant of certain group rights. Fourth, the strategy of a constitutional devolution of power as a form of grating autonomy fails disastrously in the face of the claim to self-determination taking the form of demanding homeland. The idea of homeland is markedly different from a claim for devolution of power. The fact, that the demand for homeland has made itself known, shows in most cases that sovereignty has been internalized. A state has emerged or is about to emerge within a state, that the ethnic turn of the self is an accomplished fact. And, the self is ready to achieve its homeland even at the cost of expelling other selves, by mass murders of varying intensities, by driving out neighbours thereby turning them into the stranded minorities, and committing genocide. Fifth, the idea of homeland, as experiences of this region show, does not cause breakdown of the state. It follows, and not precedes, the breakdown of the liberal state that had thought that liberal ideas of statehood were enough to accommodate different selves and their desires under an overarching constitutionalism that from its beginning sheltered majority rule, made minorities the victims, and occasionally granted devolution of power. Sixth, the assertion of the claims of self-determination, its diversity, and in states’ eyes its provisional nature result in making the discourse of the state openended, and more than ever vulnerable to the little discourses of groups. Seventh, the insistence of the cry for self-determination and the equally insistent strategy of the state to subsume the cry in the techniques of devolution make the situation beyond the reach of both a liberal discourse of governance and an ethical discourse of toleration and multiculturalism. Sri Lanka is the best example, though the Indian instance also is telling. What we have instead is an engulfing bewilderment with this self that is demanding the right to determine without ever specifying what it wants to determine. 7

A. Kemp, ‘From Politics of Location to Politics of Signification – The Construction of Political Territory in Israel’s First Years’, 12 Journal of Area Studies (1998), pp. 74–101; also her, ‘The Frontier Idiom on Borders and Territorial Politics in Post-1967 Israel’, 19 Geography Research Forum (1999), pp. 78–97.

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RANABIR SAMADDAR Eighth, the discourse of the state in South Asia is thus no longer centralizing and nationalizing (in the old sense and in distinction to territorializing) – more important, the claim of the official discourse to hegemony is seriously wounded. But, and this is the ninth and a very ironic implication, which is that, this does not make the discourse of the state weak. The re-negotiation of contracts by the state makes the discourse of the state flexible, thus making the principle of sovereignty diffused, therefore widespread. Tenth, the closed situation makes the politics of reconciliation and of making justice a part of the politics of recognition an alternative to the discourse of the state. In other words, more than the claim to right, it is the appeal to justice, that redeems the self and its politics, for it makes others aware of the injustice done to it, while it itself becomes aware of the existence of others selves. Determination becomes a political and a moral act. The trend towards suffusing right with the cry for justice in this region was evident probably for the first time in 1970−71 in the case of Bangladesh, but at great cost. Today the trend is more evident. However we need not anticipate the issue here, for we shall have to return to the theme of justice at even the last turn of the argument of right. We must see first the chronicle of practices of autonomy that were and are supposed to take care of the self and its right of determination. II. POLITICAL FORMS OF AUTONOMY IN SOUTH ASIA Bangladesh In Bangladesh the British had enacted for the Chittagong Hill Tracts (CHT) the CHT Regulation Act of 1900 that had been preceded by the Act XXII of 1860 whereby they had introduced indirect rule in the area by declaring it an administrative district. Introduction of such autonomy provisions was not uncommon in colonial rule when the colonial authorities had combined a variety of methods for administering the country. Thus, inner line regulations, declaration of excluded and partially excluded areas, quasi autonomy in land regulations and dispensation of justice were some of the methods that accompanied the introduction of rational administration over the entire sub-continent. In the CHT the powers of the local chieftains were gradually whittled down and by 1937 the safeguard on immigration was withdrawn, in 1937 the role of hill chiefs was reversed, and they now only advised the government on policy matters. Finally in 1964, the special administrative status of the hill tracts was repealed by an amendment to the Constitution of Pakistan. The Constitution of independent Bangladesh does not recognize minorities as groups distinct from the Bengalis; everyone is a ‘Bangladeshi’. And though Article 23 enjoins upon the state to conserve cultural traditions and heritage of the people, again the purpose is to enrich ‘national culture’. It was a situation of severe loss of autonomy compounded by the complexities of partition of 1947. The construction of the Kaptai dam affected about one hundred thousand people, inundated 400 square miles including 54,000 acres of arable land, rehabilitation and compensation was minimal, and the demographic balance also changed in a short period dramatically. In 1947, nearly 97 546

MINORITY RIGHTS AND FORMS OF AUTONOMY IN SOUTH ASIA per cent of the population of the Hill Tracts was indigenous, however, in 1991 the Bengali population rose from 2 per cent to 48.5 per cent. The re-introduction of provisions of autonomy through the Chittagong Hill Tracts Agreement in 1997 following the almost twenty year long insurgency goes halfway in ensuring the right of the people there to self-determination. District local governments in the three districts of Rangamati, Khagrachari, and Bandarban and the regional council were introduced after the enactment of the Implementation Acts in 1998. But the enactments do not have constitutional guarantee. They have deviated from the agreement, the Acts have incorporated almost all Bengali settlers, and the government has refused to amend the Acts to ensure the provisions of the accord. The regional council does not enjoy legislative power, except on traditional ‘tribal’ laws. The stipulated land commission to undo the wrongs of the past regarding the ownership of land and hills by those who had illegally settled and occupied has not yet started functioning. A great number of settlers have become ‘non-tribal permanent residents’. Fiscal and economic autonomy is limited to taxation of local trade and items such as land and buildings, holding taxes on industry, a percentage of royalties from forest resources, fishing, supervision of local health, education, and transportation. Autonomy in cultural affairs is predicated by the use of Bangla as the only official language. Yet, one must remember that this limited measure of autonomy, legally but not constitutionally ensured, is not available to other minorities spatially concentrated or dispersed. Thus, for indigenous people in other areas of the country, or for religious minorities dispersed in the country, (as in the hill areas) the Constitution does not provide any measure of economic, cultural, or political autonomy. On the contrary, the country still retains the act related to vested (earlier enemy) property whereby an unaccounted amount of land (nearly ten per cent of total cultivated land) has been transferred by force or threat of force from the Hindus to many Muslim landowners/peasants/speculators and profiteers. In an overwhelmingly Muslim and Bengali country whose Constitution proclaims Islam and Bengali as two main characteristics of the nation, the state only exceptionally recognizes rights and identities of other groups. The land rights of plains and hill indigenous people are often unrecognized. Independent surveys complain that the number belonging to these groups is often underestimated. The 1981 census estimated the number to be 623,216; the figure was revised in 1989 to 897,828, and the census of 1991 estimated the figure as 1,205,700 – 1.13 per cent of country’s total population. The land wealth (often the only wealth) of these groups has been further whittled down by market forces such as the ADB (Asian Development Bank). Displacement, deforestation, dispossession of land, and the very weak nature of decentralization symbolized by the frail local councils, provide the backdrop in which autonomy remains provisional and exceptional.8 Certain powers have been given or conferred 8

On the incomplete nature of the accord and the implementation acts, see the deliberations of the peace audit on the CHT in J. Perera (ed.), Peace Process in Nagaland and the Chittagong Hill Tracts – Peace Audit Report 1 (SAFHR Paper 5, Kathmandu, 1999); on other minorities in Bangladesh, see on land rights of non-religious minorities, see the detailed discussion in P.

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RANABIR SAMADDAR and devolved. But the power to self-rule, the essence of political autonomy, remains unrealized. Nepal In Nepal, about 20 per cent of the population belongs to hill groups such as Magar, Tamang, Rai, Gurung, Limbu, Sherpa, Lepcha, Chepang; there are the indigenous people of the Terai, the janajatis of the foothills, such as the Tharu and Dhimal, who may constitute another 10 per cent of Nepal’s 18 million population. The Muslims also live in the Terai region. Religion-wise, Hindus constitute 86 per cent; the Buddhists eight per cent and Muslims about four per cent of the people. Nepali is the mother tongue of about 50 per cent of the population, and in 54 of a total of 75 districts, it is the first language.9 Yet in this polyglot and poly-ethnic society, dominated by the upper castes and the Kathmandu valley, there is little presence of any notion of autonomy. Autonomy from Indian domination for the nation of Nepal, yes, but the idea or any arrangement of autonomy for the regions, groups, and nationalities is absent from the Constitution. It is important to note that the movement for democracy and the democratic exercise in constitution making did not usher any sense of autonomy for various sections and group rights. Many demanded a secular state; there were also demands for making the constitution-making process more broad-based by including members of various nationalities, but the transition to democracy represented a typical liberal process oblivious of the problem of plural selves in society, and largely reminiscent of the Indian Constitution making process. One observer has reflected on the process with these words, ‘The politics of constitution making was characterized both by an unprecedented euphoria and by a sense of frustration among ethnic communities . . . though among the nine members of the Constitution Recommendation Commission . . . six were Bahuns, and three were one each from the three ethnic communities – Newar, Lama and Tharu. Yet, they could not be called as ethnic representatives, because of their own social status and recognition as politician (Lama), Attorney General (Tharu) and Chief Secretary and Chairman of Public Service Commission (Newar).’10

The Constitution of course declares Nepal as a ‘multi-ethnic, multi-lingual, democratic, independent, indivisible, sovereign, Hindu and a Constitutional Monarchical Kingdom’. But even the inadequate recognition of plural selves is Gain and S. Moral, ‘ Land Rights, Land Use and Ethnic Minorities of Bangladesh’, mimeo, SAFHR Peace Audit Exercise, 1999. 9 Cited from a study conducted by the Centre of Nepal and Asian Studies, Tribubhan University, on the basis of the 1991 census, in Lok Raj Baral, ‘Ethnicity and Constitutional Reforms in Nepal’ in Iftekharuzzaman (ed.), Ethnicity and Constitional Reform in Asia (University Press Limited, Dhaka, 1998), pp. 84–107. 10 Ibid., pp. 95–96.

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MINORITY RIGHTS AND FORMS OF AUTONOMY IN SOUTH ASIA diluted further in several articles such as Article 2 that declares the people to be united by a bond of common aspirations and faith in the integrity of the nation, or Article 20 that says that the state while maintaining diversity will adopt a policy towards strengthening national unity. There are several administrative arrangements for the improvement of the janajati communities. But these are welfare measures which at best succeed in producing a ‘creamy layer’ and at worst institutionalize corruption in one more way. Exceptionally the can become part of a devolution strategy. But all these have nothing to do with autonomy or federalization. Though by standards in the region the degree of tolerance and consciousness about pluralism in Nepal is more than that in other countries in South Asia, yet with no decentralization and no devolution of power, and with extreme conditions of deprivation, the movement for self-determination has already begun. It is difficult to tell how the political ideas of the popular insurgents will develop on this issue, but there can be no mistaking the fact that apart from the classical promise of rights of various nationalities, this movement is itself one of self-determination. In conditions of semi-feudalism in the vast countryside, the immiserisation of small peasantry, the exploitation of rural poor, and the absolutely non-productive presence of a comprador business class, the battle for extending democracy to the regions, subregions, and villages cannot be but one of self-determination. By drawing democracy out of its parliamentary limits and making agrarian democracy the key item on the agenda for the democratization of the country, the principle of selfdetermination will assume a new form. It will enrich the experiences of autonomy in South Asia.11

11 The Nepali sociologist Krishna B. Bhattachan discusses this in the context of rising violence in Nepali society and the agrarian armed struggle launched by the Communist Party of Nepal (Maoist) in, ‘Possible Ethnic Revolution or Insurgency in a Predatory Unitary State Hindu State, Nepal’ in D. Kumar (ed.), Domestic Conflict and Crisis of Governability in Nepal (Centre for Nepal and Asian Studies, Kathmandu, 2000), pp. 135−162. He quotes the leader of insurgency, Prachanda, as saying: ‘Along with the development of the People’s War is a new consciousness for fighting for their own rights and liberation is spreading amongst many oppressed nationalities of the country such as Magars, Gurungs, Tamanga, Newars, Tharus, Rais, Limbus and Madhesis. People’s War has spread up the process of formation of various national liberation fronts and expansion of nationality organizations. Similarly, today along with the development of People’s War, a wave of organization and struggle has been created among Dalit castes at a greater speed and a wider scale. The Dalits are today rebelling against inhuman tyranny perpetrated upon by the feudal state of high caste Hindus.’ (p. 144) See also M. Lawoti, ‘Exclusionary Democratization – The Politics of Minority Domination in Nepal’, (unpublished) paper presented to the ‘Dialogue on Democracy and Pluralism in South Asia’, Jawaharlal Nehru University, New Delhi, 14-17 March, 2001. Lawoti shows how the political issue of autonomy has become more insistent in Nepal, after the Nepalese polity became a parliamentary democracy and the state more majoritarian.

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RANABIR SAMADDAR Pakistan In Pakistan, typical of the state of contemporary political vision, aspirations and demands for democracy have been viewed as ‘ethnic’ demands; in more sophisticated but in reality shallow language, it has been termed as ‘rise of ethnicity’. Take again the plural composition of the country. Punjabis are 68 per cent, Sindhis 13 per cent, Pathans about nine per cent, and the Baluchs form about three per cent of the country’s population. In terms of political units, Punjab has 56 per cent, the province of Sind has 27 per cent, North Western Frontier Province (NWFP) has 13 per cent, Baluchistan five per cent and the Federally Administered Tribal Areas (FATA) have two per cent of the population.12 Yet Pakistan carries the legacy set in 1955 when various provinces of West Pakistan were integrated into one single unit to counter the Bengalis, who constituted 55 per cent of Pakistan’s population, and to kill the democratic movement in West Pakistan also. It is a legacy strengthened by the suppression of the movement for self-determination in Baluchistan, the repression and massive killings of the Bengalis who demanded autonomy and later on independence, and the repeated take over of power by the military oligarchy. The Constitution of 1973 failed to protect the autonomy of the minority provinces such as the NWFP and Baluchistan. The Council of Common Interests, (CCI – Article 152) apart from aiding in some inter-state disputes on water sharing, failed to protect the autonomy of provinces. The National Finance Commission (NFC), another constitutional body set up under Article 160, similarly failed in protecting the financial autonomy of the states. In any case from 1973 to 1991 the CCI and the NFC did not have any meetings, and the Constitution itself was not functional for much of this time. Reminiscent of the experiences of India and Nepal, articles in the Constitution ritually spoke of preservation of language, script and culture (Article 28), protection of minorities (Article 36), promotion of social justice (Article 37), at the same time the same Constitution ensured loss of provincial autonomy, domination of one language group and one province, and an unprecedented centralization of power – a process capped by the repeated assumption of all powers and authority by the armed forces. Therefore, whatever limited provincial autonomy was given in the backdrop of the struggle for selfdetermination of the Bengalis became even more limited by the absence of any measure of autonomy for the minorities. Indeed, the Constitution does not even recognize the non-religious minorities at all. Today the enlightened political class in Pakistan speaks of a ‘new social contract’. But the question is, contract with whom, and in what form? Will it be a contract with various groups, provinces, and constituencies of the democratic masses, or a contract with sections of the political class to undertake once again the

12

Pakistan Year Book, 1992, Karachi, 1993, p. 6.

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MINORITY RIGHTS AND FORMS OF AUTONOMY IN SOUTH ASIA failed task of nation building?13 And what will be the form of this contract? If federalism were enough, then why could it not ensure the rights of the different categories of minorities? Again, how will the regions get autonomy? And finally, how will the country’s democratic autonomy be protected from the repeated invasions of the army-bureaucracy-comprador class? The country’s 1973 Constitution was more liberal than the preceding attempts – but this poses two things of critical concern. First, the repeated failures to have a stable constitution show that without democracy for the parts and groups as well as for individuals, constitutional stability remains an uncertain prospect. Second, the liberal constitutionalism that the 1973 Constitution wanted to usher in will not be the path. An overriding truth of South Asia’s political history is that democracy comes through the liberal path, and the limits of the liberal constitutional path soon endanger democracy itself. No wonder so many Balochs, Pushtoons and Sindhis have argued that con-federalism instead of federalism has to be the form of political organization in which the republic would control defence, foreign affairs, communications and currency, and the confederative states would control the remaining areas. Additionally, the confederative states would have their own militia and the constitutional right to withdraw from the con-federal union if the republic or its armed forces violated the principle of the confederative structure.14 Whether such a structure will be the most suitable form too embody democracy is difficult to tell. Surely it would be a step forward from the present state of affairs. However, only time will tell if that will be sufficient to ensure democracy within the unit and provide guarantees against a strong local bully. But the Pakistani experience certainly shows the multiple ways in which the principles of democracy, federalism, autonomy, self-determination and minority rights cut each other’s path, and that a neat congruence can be a rare thing in actual political life.15 The experience of 1971 was imbued by the nation, nationalities and classes each in their own way. What prevailed over many predictions and therefore many discourses, was that East Pakistan in any case was an aberration, with the two parts of the country thousand miles from each other, and after all the Lahore Resolution had envisaged many Pakistans. And now with the aberration removed, though unhappily for the nation, the chance has come to build a strong integrated country. No doubt, there are other visions, but at present the dominating discourse seems to be this. This grotesque reality where the rulers think that if liberal principles of multiparty democracy, parliament, independent judiciary and a written constitution are 13

On this, Y. Samad, A Nation in Turmoil (Sage Publications, Delhi, 1995); also C. Kennedy, ‘Managing Ethnic Conflict – The Case of Pakistan’, 1:3 Regional Politics and Policy (1993), pp. 135–139. 14 A Confederal Constitution for Pakistan – An Outline by Sindhi, Baluch and Pushtoon Front (n.d.), pamphlet cited in M. Ahmar, ‘Ethnicity and Constitutional Reforms – A Pakistani Perspective’ in Iftekharuzzaman (ed.), Ethnicity and Constitutional Reforms in South Asia (University Press Limited, Dhaka, 1998) p. 114. 15 S. Jaffar Ahmed, Federalism and Pakistan – A Constitutional Study (Oxford University Press, Karachi, 1990).

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RANABIR SAMADDAR reinforced by a devolution package, then the issue of self-determination will be successfully negotiated away is most evident in the recent political history of Sri Lanka. Indeed, the fundamental question arising from that history is, can constitutional reform become a successful instrument for settling demands for selfdetermination? In cases such as Sri Lanka where the national groups are not given an equal status, are not party to the decision-making process, and a certain unilateralism prevails, what worth are the constitutional reforms? Constitutional reforms that do not come as part of a reconciliation and peace process are exactly like the imperial reforms that the colonial authority brought to India from time to time, which failed to satisfy the urge for autonomy or self-determination, and in fact fuelled the urge further. The Morley-Minto Reforms, Montague-Chelmsford Reform, recommendations of the Simon Commission, the India Act of 1935, and the Cripps Mission – all these were constitutional reforms through the imperial process. The post-colonial polities of the region continue with the imperial tradition of a unilateral constitutional process. Thus consociationalism, confederacy, autonomous political regions, and other forms of shared sovereignty cannot come without a vigorous political process which is essentially an extra-constitutional process but which jurisprudence can allow for the former to achieve the status of a basic law. Any major constitutional amendment requires a special process that can range from referendum, two-third’s majority in parliament, special ratification by a specific number of states, to judicial advice. Constitutions being mostly conservative documents and asymmetrical documents represent interlocking structures. In other words, amendments to constitutions to secure minority rights, or rights of different groups to justice are extremely difficult to achieve, as either the constitution in question does not have symmetry among groups and estates of the society, or an amendment requires an entire set of revisions in the structure. Therefore it will be wise to remember the lessons of the constitutional history of this region in the context of the emerging calls for expanding democracy, that a revision of a political process precedes that of the constitutional process, and only a revision of the moral foundations of the constitution can propel successful constitutional reforms. The histories of engagements with the principle of autonomy will point to this truth that remains expectedly neglected owing to the massive power of the governing class, which retains huge interest in maintaining the basic law in the way that has brought it to power. Indeed, the constitutional history soon reaches a crossroad in the wake of the persistent cry for self-determination – either as a constitutional counterrevolution that happened in Pakistan and Sri Lanka, and may now take place in India, or a revision of the moral basis of the constitution in the direction of democracy followed by reforms. Sri Lanka In Sri Lanka, constitutional denial of autonomy and political, cultural and physical repression of the non-ruling nationalities, particularly the Tamils went together and made the situation intolerable for the latter. The Sinhalese language became the sole 552

MINORITY RIGHTS AND FORMS OF AUTONOMY IN SOUTH ASIA official language in 1956. Before that the Soulbery Constitution, that guided the country from 1948 when the country gained independence to 1972 when the republican Constitution was introduced, in the name of equality of all communities had made positive discrimination of any community very difficult (Section 21, subsection 2). Thus, protection of minorities was completely dependent on the rulers from the beginning. Even the thirteenth amendment to the present Constitution brought in the wake of the Rajiv Gandhi−J.R. Jayewardene pact in 1987 entailing provincial constitutional councils and a limited devolution of powers was cancelled later. Thus, the Constitution reflects no awareness that this is the basic law of a society where the Sinhalese are 74 per cent (of this 74 per cent, almost 70 per cent are Buddhists), Tamils 18 per cent (of this 15.5 per cent are Hindus) and Muslim minority groups constitute seven per cent of the population. Of the Tamils constituting 18 per cent of the country’s people, 12.5 per cent are the so-called Sri Lankan Tamils and 5.5 per cent are Indian Tamils. The Senanayake government had curtailed citizenship and voting rights of the Indian Tamils in 1948 and 1949 through a series of legislations. The new republican Constitution of 1972 abolished whatever safeguards had been accorded by the Soulbery Constitution. It not only declared the Sinhalese language as the only official language, it granted special status to Buddhism. It abolished the second chamber; one of the reasons for the dissolution of the chamber was that the body could act as a restraint against discrimination of minorities. The system of nomination of representatives of underrepresented groups in the Lower House, somewhat like the Indian system, was also abrogated. The 1978 Constitution gave Tamil the status of a national language, accorded statutory recognition to its use in various fields of administration and education, abolished the distinction between a citizen by descent and implemented registration that helped the remaining Indian Tamils to some extent. But all these concessions continued with unabated violence against minorities, riots, the pogrom of 1983, and a full-scale military offensive by the state, aided by a foreign power, against its own citizens. Even the very limited devolution under the thirteenth amendment was whittled down by conditions of extreme executive centralization in Colombo, the political manipulation of various Tamil groups by the government in the name of running the councils, the revocation of the sixth amendment of the Constitution, and then by the dissolution of the council in the North-East. With virtually no autonomy and fruitless clamour for democracy for years, the Tamil demand for self-determination arose. The history of the Tamil self is as important as the foregoing story of the constitutional denial of the recognition of the self. The Citizenship Acts of 1948 and 1949 had made the vast majority of the Indian Tamils stateless. Out of eight lakh Indian Tamils, only 16 per cent got citizenship, the rest had to melt away in the vast plains of the south Indian countryside under the Sirimavo-Indira pact and through other means. Tamils formed the Federal Party, which objected to a single national flag, and called for a federal union with an ‘autonomous state’ for the Tamils. The deliberate and non-deliberate settlement/migration of the Sinhalese in the North and the East, the language policy, statelessness of a huge number of people, racial 553

RANABIR SAMADDAR discrimination, and riots completely destroyed the faith of the Tamils in the successive constitutions. The policy of the Sri Lankan state to ethnicize domestic politics in the name of redressing balance between various groups bore poison fruit by early eighties. The Bandaranaike-Chelvanayakam Pact that had provided recognition of Tamil as a minority language and the dominant language in Tamil areas and had envisaged a plan for regional councils was withdrawn because of pressure by the Buddhist clergy. Again, we have a similarity here with a lessdiscussed chapter of Indian history when the C.R. Das-Fazlul Haq Pact, popularly known as the Bengal Pact was repudiated by the Hindu-dominated Congress soon after Das' death in the second half of the twenties of the last century, and that abrogation marked the irrevocable phase of communalization of Bengal politics. The Federal Party withdrew from the government in 1968, the radical Tamils censured and threatened the Tamil M.P.s who had collaborated in the enactment of the 1972 Constitution that denied any recognition to the minorities, and Tamil consciousness was reflected in the merger of the Federal Party and the Ceylon Workers Congress in the form of the Tamil United Front and later the Tamil United Liberation Front.16 Even this was not enough. The radicalization of the Sinhalese youth reflected in the struggle of 1971 had impacted on Tamil youth also. The collaborationists were denounced, TULF had to give the call for Tamil Eelam, and this spurred the Tamil youth all the more for decisive action and for doing away with the rhetoric into which the constitutionalism of the country had pulled the Tamil politicians and had hitherto subsumed. The rest of this history is well known. What is not acknowledged is the presence of a pattern, the uniformity of practices of self-determination in the region, and the sordid history of constitutionalism in countries of South Asia. Elsewhere, as in Sri Lanka, constitutionalism was a failure. Elsewhere, as in Sri Lanka, democracy was perceived in the ethnic glass. Elsewhere too, the state was most responsible in conducting politics with the ethnic baton. Everywhere it was and is still thought that a constitution, a party system, and some devolution of power would solve the issue of ‘separatism’. Everywhere, under these conditions, the self has become an ethnic self and the right to self-determination has thus become an assertion of ethnicity. Thus we have greater Nagaland, greater Mizoram, or a greater Tamil-land consisting of the North and East of Sri Lanka, or greater Pakhtoonistan. Everywhere this assertion is accompanied by killings of ‘moderates’ by ‘radicals’ in the movement – a fury against constitutionalism, then a solidified ethnic divide, and a determined

16

There is an ever-increasing volume of literature on the political history of the Tamil movement. For my purpose that seeks to examine the constitutional history of the country and the evolution of many selves, see W. Howard Wriggins, Ceylon – Dilemma of a New Nation (Princeton University Press, Princeton, N.J., 1960); C. Manogaram, Ethnic Conflict and Reconciliation in Sri Lanka (University of Hawai Press, Honolulu, 1987); S.U. Kodikara, ‘The Separatist Eelam Movement in Sri Lanka – An Overview’, 37 India Quarterly (1987); and R.N. Kearney, ‘Ethnic Conflict and Tamil Separatist Movement in Sri Lanka’, 25:9 Asian Survey (1985).

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MINORITY RIGHTS AND FORMS OF AUTONOMY IN SOUTH ASIA campaign to secure ‘homeland’ by killing some and expelling others from ‘Promised Land’, and everywhere then it is a closed world. What is also not acknowledged but is implicit in the political discussions is that, constitutionalism and the political demand of the self to determine its destiny run like the hare and the hound, never able to catch each other until one is able to meet up with the other for a murderous engagement. To take a leaf out of Sri Lanka’s recent constitutional history again, Article 9 of the present Constitution of Sri Lanka says, The republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14 (1e).

What does Article 10 say? It declares, ‘[e]very person is entitled to freedom of conscience and religion, including the freedom to have or adopt a religion or belief of his choice’. In other words, Tamils have the right to be Hindus, but the state will be Buddhist. Yet this is not surprising. The amendment bill to repeal and replace the Constitution towards correction of historical inequalities in Sri Lankan society, to win back the confidence of the Tamils, and drafted on the basis of concurrence of the Sinhala political class, redrafted the above article thus in the form of Article 7 (paragraph 1), The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly, it shall be the duty of the State to protect and foster the Buddha Sasana while giving adequate protection to all religions and guaranteeing to every person the rights and freedoms granted by paragraphs (1) and (3) of Article 15.

And then it said further as if stung by conscience (paragraph 2), The State shall, where necessary, consult the Supreme Council, recognized by the Minister of the cabinet of Ministers in charge of the subject of Buddha Sasana, on measures taken for protection and fostering of the Buddha Sasana.

And what do these two paragraphs of Article 15 say? Paragraph 1 says, Every person is entitled to freedom of thought, conscience and religion including the freedom to hold opinions and to have or to adopt a religion or belief of the person’s choice.

Paragraph 3 says, Every person is entitled to the freedom, either alone or in association with others, and either in public or in private, to manifest the person’s religion or belief in worship, observance, practice and teaching.

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RANABIR SAMADDAR So, constitutional patronage of the majority religion remains unambiguous, only the freedom to practice one’s religion is announced in a more detailed manner. In such a situation the fate of constitutional politics in its mission to win back loyalty of other selves to the state of Sri Lanka should not cause any surprise. Thus, each round of political activism is followed by a corresponding round of constitutionalism that only serves to impel the next round of activism to press its demand of selfdetermination. This double narrative, as the experience of Sri Lanka and more loudly the Indian experience show, is strewn with broken promises, broken accords, and numerous revisions of the Constitution, with the general lowering of the level of trust in the country. Two related issues here merit critical analysis. One, constitutionalism is so much naturalized, that is to say, appears so natural, that we take autonomy as a lower tier whose higher one is self-determination. Thus if arrangements of autonomy succeed, there will be no need for the latter, and if they fail, then the latter course becomes regrettably inevitable. In this way it becomes the pretext for the continuing text of constitutionalism, also our excuse of not analyzing rigorously the entire right itself whose manifold form calls for investigation.17 Second, and this is the more significant issue to analyse, what would have happened if the accords prevailed, if promises were kept, if the incipient experiments at accommodation were given a chance to grow? This question is actually one of critically looking at the ‘narrative closure’ of the process that has already happened. It appears as if this is an ‘accomplished history’, rather than an open ‘historical process’, that is to say, open towards the future. Such a narrative closure holds sway over the common perception of that history and prevents us from seeing possible alternatives. This is a sort of ‘squeezing’ or ‘erasure’ of the present dimension, that is of the life experiences (and of the political subjectivity and citizenship) of people who have lived through those events. In the constitutionalist narrative that closes the possibilities of the process, the experiences of political subjectivity count for nothing, time-count starts from zero, fifty plus years of life of this region have been wiped out by such selective memory, which is what allows (among other factors) for the repetition of the cycle of violence and constitutionalism. Once legitimated, violence reproduces itself. Violence also produces the stereotypicaly division that the ‘community’ is just, and the ‘nation’ that brings in its wake disorder, riots, violence, and irrationality is unjust. The more this categorical distinction takes root, the more the nation-state wants to become the community by making the polity communitarian, communal. Society, a multidimensional open space, loses out from the discourse. Community, often a vertical non-democratic construction, wins. Communal violence is justified in the name of 17

My debt to Etienne Balibar continues. Balibar in an extremely concise essay, ‘What makes a People a People? Rousseau and Kant’, in M. Hill and W. Montag (eds.), Masses, Classes, and the Public Sphere (Verso, London, 2000), pp. 105−131, shows how law constitutes people into a people, and yet masses, whose elemental existence creates fear, produce a supplement in this production of a people. Constitutionalism is thus at once a question of freedom but constraint also.

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MINORITY RIGHTS AND FORMS OF AUTONOMY IN SOUTH ASIA the community that is seen as trying to break away from the ‘national state’, but to produce what? The answer is a state of their own nation that has grown out of their community. There is almost no way to stop this fatal movement, ironically presided over by constitutionalism, towards killings, genocide, and divisions, other than by investing in critical appreciations of other possibilities, which I shall be terming as ‘contra-history’, which is the other name of historical possibilities residing within history to go against that history. India In this region, India offers the widest variety of constitutional forms of autonomy, which have the capacity to contain the urges of many selves, but are also utterly incapable of going beyond their ‘container’ role to become instruments of democratization of the country. Indeed, the entire paradox of self-determination, narrated above, is nowhere more evident than in the Indian experience. The Indian experience is most instructive because of its diversity and range, the full extent of colonial innovations, multiple forms of autonomy, the complex path of constitutionalism, a wide the variety of accords, the persistent cry for selfdetermination, and an unyielding and innovative state determined to keep the destined nation intact while keeping others from becoming nations. In an earlier work, A Biography of the Indian Nation, 1947-97 I had described the politicalconstitutional way in which the minorities negotiated with the state – the legal forms and the forms of accords.18 It will be instructive to see in that context at least the rough contours of the double narrative of constitutionalism and the insistent political cry of the many selves whose features have been described above at length. The Constitution provides special status for certain states such as Jammu and Kashmir, Nagaland, Sikkim, Assam, Manipur, Arunachal Pradesh in Articles 370 to 371H. The Constitution also embodies the principle of non-discrimination in Articles 14, 15, 16, 19 and 29. It assures freedom of conscience in Article 25 and freedom to manage religious affairs in Article 26. Article 30 ensures the right of minorities to establish and administer their own educational institutions. Under the special protection clause in Article 371, tribal customary laws, procedures, and land rights are protected. Part XVI ensures special provisions for scheduled castes, scheduled tribes and other under developed classes. There are arrangements for zonal councils also. The States Reorganization Commission ensured statehood for major linguistic groups. There is provision for autonomous district councils in scheduled tribe dominated districts. The 73rd and 74th amendments to the Constitution ensured devolution of powers at village and town level. Similarly, the Constitution arranged for financial autonomy of the states through a constitutionally prescribed division of resources and the National Finance Commission. Apart from creating new states (some very recently created) and autonomy for some states in particular, a range of accords and unilateral measures on Darjeeling, Bodoland, Leh, North Cachar Hills, Karbi-Anglong district, Khasi district, Jaintia Hills district, 18

A Biography of the Indian Nation, 1947−97 (Sage Publications, Delhi, 2001).

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RANABIR SAMADDAR Tripura Tribal Areas district, Chakma, Mara and La districts in Mizoram, created autonomous areas and district councils under the fifth and sixth schedules. The pattern of combining nationhood with exceptional autonomies is significant. Is autonomy part of the basic features of the Constitution that the Parliament should not touch? There is no clear answer whether the provisions of autonomy are inviolable or not in the context of the erosion of Article 370 providing for autonomy of the state of Jammu and Kashmir. In any case, autonomy never captured the republican imagination. Thus, the Supreme Court never had autonomy in mind when commenting upon the in/violability of the basic features, that primarily meant fundamental rights, only one of which deals with autonomy.19 The republican mood sways the overwhelming part of rights. Thus provisions such as Articles 14−16, (again combining exceptional discrimination on positive grounds), Articles 22−23, Article 25 (combining exceptional right), Article 29, Articles 38−39 defining common welfare, securing common good and indeed laying down the constitutional basis of a welfare state, Articles 46−47, Articles under Part IX (the panchayats) – create a polity based on republicanism, that while allowing autonomies, promote an ethos of one nation, one people, and one land. Therefore, provisions such as Article 244 (administration of scheduled areas – fifth and sixth schedules) cannot counter the wave of majoritariansim that arises out of the republican spirit. There is more to this enigmatic and unequal co-existence of nationalism and autonomy. For example, there is no uniform civil law, on the contrary a variety of personal laws, and linguistic autonomy in some measure. The Indian constitutional and political system has evolved with the inclusion, for at least seventy years, of varying forms of autonomy – administrative, cultural, religious, fiscal and legaljuridical. Yet, demands for right to self-determination ranging from more autonomy to secession have arisen frequently, and if some have mellowed, others have persisted and have grown insistent notwithstanding massive state-suppression and loss of lives. It began with the Muslim demand for self-determination in the preindependence time and continues in various forms and at various levels still today. The constituent states have said that their legislative, administrative and financial autonomy is inadequate or has diminished. Kashmir says its autonomy is fictive. Insurgents in the Northeast have said that a grant of statehood is a ploy to subsume them into the Indian polity. Religious minorities say that they are under unprecedented attack of the fascist communal forces belonging to the majority community backed by the state. The scheduled castes and tribes say that their deprivation, poverty and disempowerment have only grown. The legal19 The ‘basic features’ of the constitution cannot be amended by exercising the power of amendment under Article 368. The Constitution 42nd Amendment Act, 1976 had inserted in Article 368 (5) a provision that there was no limitation on the constituent power of the Parliament to amend the constitution. Though the Supreme Court invalidated this, ambiguity still remains. See Keshavananda Bharati v. State of India (AIR 1973 SC 1461), Minerva Mills v. Union of India (AIR 1980 SC 1789), and Srinivasa v. State of Karnataka (AIR 1987 SC 1518).

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MINORITY RIGHTS AND FORMS OF AUTONOMY IN SOUTH ASIA administrative measures for protection of autonomy such as the Minorities Commission, Human Rights Commission, and Women’s Commission, are severely limited in their powers. The state counterparts to these national commissions are even more limited in powers and functions. The commissions in the states for the protection of minority languages and cultures, interests of scheduled castes and tribes are also weak and inadequate. In short, we have in the Indian instance the most extra-ordinary juxtaposition of measures of autonomy and a relentless centralization – seen from another angle, the most relentless constitutionalism and the most insistent cry for the self to achieve recognition. It is also a narrative of how and when a group refuses to accept at some historical moment the identity of a minority and claims the status of a people, a nation. This however should not cause us surprise. For, along with the discourse of modernity and liberalism we received from the West the category of minority − also a gift from Europe busy in wrestling with the mode of dismantling the AustroHungarian empire, and settling once for all the ‘eastern question’. At a time when our people were learning how to build a popular policy of anti-colonialism, building our nationhood, we also learnt how to be majorities and minorities, and thus we produced not one nationalist discourse in the colonial world, but several nationalist discourses. In the midst of this double learning, we arrived at the historical moment of de-colonization. We shall need thus a detailed narrative to show how constitutionalism in the beginning held promises of accommodation, reconciliation and friendship, how the trust broke down quickly because the arrangements collapsed under the pressure of state-discourse, then the long defiance, state suppression, equally resistant and often brutalizing struggle, escalation of homeland demand, and a renewed attempt to contain all these within constitutional confines. The official discourse of the state looks at all of this as the republic’s engagement with forces of separatism and the attempt of liberal democracy to innovate ways of nation-building. However, for those who want their homelands at any price or to part ways completely, it is a battle with constitutionalism which to them is the rockbed on which renegotiation of the polity has floundered. Of course, most have the feeling that this is a road that meets the ‘closed’ notice sooner or later. Hence their anguished appeal for justice, their mistrust of autonomous institutions, their plea that the urge of the self to gain recognition be judged in the light of democracy, their despair at the double-edged weapon of ethnicity so ruthlessly turned against them now by a superior adversary, and hence is the cry for a better understanding (which most think can come only from the international actors who are non-state and hence ‘disinterested’) of the genealogy of the bind that has now trapped them, the inferno that they know threatens to consume them, burn them all. The Indian experience of the double narrative is thus also one of return of the theme of justice and democracy to the heart of the argument of determination. In short, ‘the Indian paradox’, to borrow a term from the late Myron Weiner, has been most evident in the tortuous history of legal negotiation with the notion of autonomy on the basis of certain constitutional principles which have not been adequate for that purpose. Marc Galanter commented thirty years ago, 559

RANABIR SAMADDAR The modern legal system has transformed the way in which the interests and concerns of the component groups within Indian society are accommodated and find expression. In traditional India, many groups (castes, guilds, villages, sects) enjoyed a broad sphere of legal autonomy, and where disputes involving them came before public authorities, the latter were obliged to apply the rules of that group. That is, groups generated and carried their own law and enjoyed some assurance that it would be applied to them. In modern India we find a new dispensation – the component groups within society have lost their former autonomy and isolation. Now groups find expression by influence in the political sphere, by putting forth claims in terms of general rules applicable to the whole society. The legal system, then, provides a forum in which the aspirations of India’s governing modernized western-educated elite confront the ambitions and concerns of the component groups in Indian society. In this forum the law as a living tradition of normative learning encounters and monitors other traditions of prescriptive learning and normative 20 practice.

We can argue that nationalism and democracy has broadened the public sphere and the disadvantaged within the group has now access to justice previously denied to them. Also it can be said, that in Galanter’s argument only one kind of autonomy looms large. Primarily concerned with battles within ‘Hindu’ society for legal justice, he neglected the issue of autonomy of other kinds of groups. But the predilection is clearly shown. Do we have a differential system of justice, or an equal system of public justice with one or the other group dominating the public and turning its norm into its favour? The predilection further is, if we have a differential system, will it be competitive or cooperative? Since a modern constitution is based on the republican system of an equal public sphere that sees autonomy as an exception, how will such a basic law inhere autonomy as an integral principle of democracy? Also important is the question, how will that equality be pursued in a land of hierarchy? Indian law permits different family laws on religious lines, even permits different public laws according to different religions on matters like religious trusts, permits compensatory discrimination in favour of disadvantaged groups, and is sometimes extremely solicitous of religious sensibilities. The broad regulative powers that the state has (‘subject to public order, morality and health’ vide Article 25.1, and Article 25.2a) are rarely comprehensively enforced. The result is a paradox: we have on one hand a publicly equal system with broad state powers to regulate practices of separate identity so that they do not go against equality, we have also differential provisions to help the disadvantaged, and then in addition to these two features, we have a public system accessible to a group determined to impose its values in a large or total measure thereby almost equalizing the public 20 M. Galanter, ‘Hinduism, Secularism, and the Indian Judiciary’, 21:4 Philosophy East and West (1971), reprinted in M. Galanter, Law and Society in Modern India (Oxford University Press, Delhi, 1997), pp. 237−238.

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MINORITY RIGHTS AND FORMS OF AUTONOMY IN SOUTH ASIA and group interest. In such a situation, as Galanter shows, the stress on the judiciary is excessive. The political failure is sought to be compensated by judicial activism to the extent where a judge is compelled to define ‘who is a Hindu’, or the boundaries of faiths.21 Galanter goes further. In analyzing what he termed as ‘symbolic activism’, he shows, how compensatory measures sit so unhappily with the broad doctrine of equality as a fundamental right. Should these measures be seen as defining equality, so that the court should now force compensatory measures, or should they be seen as guidelines to the state towards making un-equals equals?22 The implication is that, if we take the first view which is based on a bifurcation of the Indian society in two broad groups – the scheduled castes and tribes, and other dispossessed minorities on one hand, and the rest on the other − we cannot have a republican constitution promoting public politics. If we take the second view, that is prescriptive policy to the state to provide succour to some disadvantaged groups, we herald an unending series of demands for classification on the basis of which the discrimination will be made. Both possibilities show the dilemmas of a liberal constitution trying to grapple with the issue of inequality and autonomy. This engenders what I term here as ‘constitutionalism’ that ironically produces even more inequality, dispossession, and desire for autonomy. The politics of recognition has to be seen in this context. Finally, one can take the case of caste as an example of the impossible politics of a constitution producing an enduring form of autonomy in India. Although the final version of the Constitution did not include a whole series of draft enunciations relating to lower castes and tribes that aimed at defining them as minorities, and had suggested an entire separate part for this in the Constitution, clearly the text as we find it today aims to define the place of caste in Indian life and the role of law regulating it. The Constitution takes a dim view of the place of caste in Indian life and is ostensibly not concerned with that, the ties of ascription remain beyond its domain; but it sees itself as the fundamental instrument to ensure that these ascriptions do not lead to hierarchy, inequality and invidious treatment in public life. Therefore, the caste system, with its own internal order and rule promulgating powers and functions, may continue as an autonomous association, but this autonomy is supervised so that it does not spill over into public politics. Doctrine, ritual and culture – all remain outside the juridical bounds till these affect the constitutional mission of promoting equality. If they do, courts and the law become active. In such a perspective, caste becomes both a religious body in the sense that its own prerogative on such matters as marital rituals, devotional methods, or 21 Galanter examines in this context the history of a case (1966) that involved the Swaminarayana sect and went to the highest court of the land where eminent jurists such as Gajendragadkar, Wanchoo, and Hidayatullah had to decide who was a Hindu. The various sects traditionally within the Hindu fold could opt out and claim rights of minorities. Ibid., pp. 237−256. 22 In the context of judicial activism, one can read, R. Dhavan et al (eds.), Judges and the Judicial Power – Essays in Honour of Justice Krishna Iyer (Oxford University Press, Bombay, 1985).

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RANABIR SAMADDAR representation to bodies like relevant commissions is allowed, and a non-religious body in the sense that the Constitution tries to detach it from the wider perspective of the Hindu society and determine its character (advantages and disadvantages) among Muslims and Christians as well. But the institution of caste is securely tied to the ‘Hindu world’, few can opt out of a caste-fold and receive protection. The entire controversy over the right to be converted to another faith shows the limits of a Constitution in upholding the autonomy of an individual or a group to choose faith.23 In short, the Indian experience shows that modern law is not a self-fulfilling prophecy working towards the satisfaction of the political subject. Faced with asymmetries of power it can manage at best the co-existence of various normative orders, and at worst it can become a willing accomplice to the manipulation of the public principles by a particular group. The result is that it displays the existence of two political idioms. There is a liberal republican idiom of democracy originating in the constitutional exercises of 1946−49 that tolerates autonomy and dissent to a defined extent. There is also a politics of recognition, pre-existing and now reinforced by the same liberal idiom, which threatens to break out and indeed sometimes breaks out of the imposed confines, resulting in a renewed phase of constitutional frenzy. These two are the quarrelsome duo, one not being quite able to displace the other. Together they have produced the uneasy reality of accommodation, which is not tolerance, but an accommodation of competing realities till one succeeds in pushing the other out of existence. But this situation, as I have indicated earlier, places the issue of justice and democracy at the heart of the issue of self-determination. Historic lessons How are we to view the prospects of the politics of autonomy? What are the guarantees that will pave the way for reconciliation and justice at least at a minimal level, and what are the historic obstructions? The brief survey presented above suggests that as an answer we must examine in detail why constitutionalism has failed in these cases. In other words, we have to ask, what are the limits to the constitutional path to autonomy of the self? Practices suggest few features of the phenomenon of failed constitutionalism: First, everywhere rule by law replaces rule by men.24 Thus, political accommodation becomes subordinate to constitutional process and legal realism. Constitutions are invoked to ensure passage to political accommodation, but which is then defeated by the nature of constitutionalism itself. 23 On the legal complexities arising out of the position that caste occupies in public life, see, D. E. Smith (ed.), South Asian Politics and Religion (Princeton University Press, Princeton, N.J., 1966); M. Galanter, ‘Law and Caste in Modern India’, 3 Asian Survey (1963), pp. 544−559; F.G. Bailey, Caste and the Economic Frontier (Manchester University Press, Manchester, 1957). 24 For historical insight into the problematic, see S. Guha, ‘Power and law in Past and Present’, in S. Saberwal and H. Sievers (eds.), Rules, Laws, Constitutions (Sage Publications, Delhi, 1998), pp. 83–96.

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MINORITY RIGHTS AND FORMS OF AUTONOMY IN SOUTH ASIA Second, imperatives of globalization make the daily practice of political accommodation difficult and subject it to universalized constitutional practices that push the political-ethical task of accommodation to the margins of political rule. Third, constitutionalism does not offer any way out of a contentious situation, because it does not offer a way of escape out of the entrenched positions of power achieved through arms. Fourth, by relegating to the margin the task of guaranteeing minimal justice of political accommodation and reconciliation, and by clinging to a framework of ‘protection of ethnic minorities’, constitutionalism cannot but represent gradualism and can only help retain the old framework of political power that had given rise to the dissenting self. The federalization and con-federalization of politics becomes an ever-receding task. Finally, there is the paradox. Economic integration makes the task of special protection non-threatening to the political class. Thus, it facilitates resolution of old conflicts. But this integration creates new ghettos, therefore new exiles, new selves, and a declining legitimacy of the political rule. In short, constitutionalism cannot be a replacement of a politics of reconciliation whose goal is the achievement of minimal justice. Subordinate to a just reconciliation that goes beyond the language of rights, constitutions can help codifying the notion of justice at least minimally and can thus help politics address the issue of self and the recognition of self. It is rightly said that there can be an ethnic problem, but there can be only democratic solution. But this implies recognition of a dual inadequacy. Just as ethnicity cannot become a language of solution, the received language of democracy cannot be the language of understanding a problem. The limits of the success-stories of autonomy are indeed the limits of the modern state to achieve compassion, reconciliation and minimal justice. The issues that arise in the wake of the failure of constitutionalism are: Are autonomy and independence two points in a sliding scale or are they different and mutually exclusive? Are there other forms that override this distinction and create new structures based on shared sovereignty? Is there an unbridgeable gulf between ‘minority’ and ‘people’? In the context of these historically unanswered questions, what strikes is the marginality of the success stories in this history of the engagement of modernity with self in international politics, its determination and the limits of a pure constitutional path for the resolution of conflicts that demand new forms of accommodation and dialogue. Arising in the wake of anti-colonialism, formation of the national states, the emergence of a fictive ethnic core at the heart of the national state, and therefore the rise of majority-centric politics as a way of dominating the subjects and the coupling of minority and ethnicity in the politics of recognition, the issue of selfdetermination now refuses to be confined in the prescribed framework of autonomy, the mark of Helsinki style democratization. The minority-discourse and the discourse of self-determination have always been interconnected. Yet they had been kept apart in the international system through the legal fiction of ‘autonomy for minority and self-determination for people’. In any case this fiction derived its existence from Central and East European experiences of the last half of the 563

RANABIR SAMADDAR nineteenth century and the first half of the twentieth century. But today the fiction finds it hard to sustain itself. I have already shown in the context of South Asia why and how constitutionalism that claims for itself universal applicability in terms of maintaining the distinction between minority and people (and therefore the difference between the respective principles of autonomy and self-determination) is actually the experience of Europe, and therefore a provincial experience that now seeks to be generalized. It is important therefore to keep in mind the historical legacy from Versailles to Dayton to appreciate the conundrum. To be successful, it is clear that, the politics of autonomy at least in South Asia will have to go beyond mere constitutional amendments and in order to become a vibrant form of political accommodation it will have to be based on five cardinal principles: the principle of compensation for past injustices, wrongs, and symbolic gestures on behalf of the national state to convince the other of its desire to continue with the principle of compensation; the principle of supervision, which will mean deciding on the right and agreeable way to supervise the introduction of autonomy; the principle of custodianship which will be crucial to settle the balance between the territorial sovereignty of the state and the autonomy of the dissenting community; the principle of guarantee – guarantee against future erosion of autonomy, guarantee of a mechanism for continuous conversation; and the principle of innovation of federalizing and autonomic practices along non-territorial lines. Yet we must understand that these principles are historically conditioned. These principles will have to confront the rules that guide the states today, improvise the structure of rule, contain dissent against the foundations of state, and ensure that the states-system does not fall apart through state-eating-state practices fuelled further by the international politics of self-determination. Here lies the difference with other problems that the state faces – the problematic of self-determination cannot be solved internally, nationally, or on a domestic basis. The principle of selfdetermination is international. The law of self-determination is again international. The impact of self-determination is international. Thus, each time the principle of self-determination is at work, the states-system undergoes convulsion. Thus, federalism, autonomy, cultural freedom, recognition of histories of separate existences, and constitutional guarantees of a variety of forms of co-existence with the state do not result from a unilateral offer from the state. They require international guarantee, adoption of regional and global standards, and flexibility of forms of accommodation. This will become possible firstly, when the state is irreversibly linked to an order that propels such an evolution of forms of shared sovereignty, secondly, when wider notions of justice unavailable in the current epoch of neo-liberalism and globalization will be sited firmly in global politics, and thirdly, this will become possible with the historic growth of a political class that will see the merits and more important the possibility of a revision of rules of governance. Indications of such a time will probably be the early signs of a new form of political community.

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SUMMARY CONCLUSIONS IS THERE AN EMERGING RIGHT TO AUTONOMY? SUMMARY REFLECTIONS, CONCLUSIONS AND RECOMMENDATIONS Zelim A. Skurbaty In conclusion, one could try to summarize the basic ideas on autonomy reflected in the articles of this volume. They are far from exhaustive, but can give the sense of the direction in which the authors of the present volume wanted to steer the discourse on autonomy: Autonomy is a multifaceted phenomenon and, as such, should be seized by a variety of disciplines clarifying different aspects of it; However, so far as the protection of the rights of vulnerable groups by autonomy is concerned, national and international standards remain the backbone of the autonomous arrangements. Absent the legal guarantees of self-rule and power sharing within the normative frame of the state (or a group of states), the group will miss out on the real and lasting benefits of such an arrangement. However, the overemphasis on the legal dimension of ‘autonomy’, could run the risk of making the concept of autonomy and the possible ways of its implementation too rigid and less attractive for some states; leaving a considerable ‘margin of appreciation’, on the contrary, could strengthen the appeal of autonomy, as states and interested sub-state groups would be able to implement autonomous arrangements taking into account the specific circumstances existing at their time and place. Though there is no clear right to autonomy in international law, there is a wide variety of examples of the effective use of autonomous institutions, not only in Europe but also throughout the world. These autonomy regimes are usually created in an ad hoc manner in an attempt to meet either present or nascent needs and aspirations of a particular group; The widely recognizable trend of modern times points towards decentralization of federal (and even unitary) structures in such a way as to either a) give a measure of autonomy to regionally or locally concentrated minorities, or b) to develop special regimes (e.g. power-sharing) under which wider or different powers are granted to minorities on a territorial or functional basis; One of the defining characteristics of the nascent and fully functioning autonomous arrangements is the asymmetrical relationship between the autonomous and other constituent units of the state (disproportionate representation in the local and federal parliaments could be one example).Federalism, on the other hand, presupposes the symmetrical set up of the subjects of federation; No matter what form the autonomous arrangement takes to provide inter-group accommodation, there will always be an overriding need to ensure that the basic 565

ZELIM A. SKURBATY principles of democracy and human rights are preserved, especially for members of sub-minorities in areas where territorial autonomy is implemented; Autonomy, per se, is not the ultimate answer to all problems surrounding sub/state groups’ situations, but should be viewed as an instrument for the effective integration of members of minorities, for securing their equality in the common political and economic domains and for minimization of their experience of disadvantage, marginalization and exclusion. Autonomy, from this perspective spells out constructive inter-dependence within a state rather than independence from a state. Secession is nether an epiphenomenon nor the unavoidable consequence of autonomy. Autonomous arrangement should not be viewed as a zero sum game whereby the allocation of a competence to an autonomous unit diminishes the competence and power of the central government and thus – diminishes the effectiveness of the state machinery; on the contrary, viewed in the context of overall effectiveness of the state machinery in terms of its impact on democracy, good governance and human rights as well as the maximization of the welfare of the whole population of a state, autonomous arrangements present themselves as powerful tools to ensure these values. Ideally, autonomy could be viewed as a winwin solution whereby every constituent unit within a state is allocated competencies that complement and reinforce each other; As the contributors to the present volume demonstrate, there is no one-to-one relationship between the notion of democracy as a majority rule and autonomy. Taken to its negative extreme, democracy can result in disregard of the views and aspirations of minorities, especially what concerns matters affecting their sense of identity, broadly defined culture and economic well-being; and we should also keep in mind that the semantic scope of a ‘minority’ can also include ‘minority identities’ developed under the influence of economic, regional and historical factors and circumstances; Related to an interplay of democracy and autonomy are the questions pertaining to the notion of internal self-determination: are governments representative enough to claim an autonomous arrangement or the expansion of the scope of the existing one? The answer could be that autonomy, in and by itself, might serve as one of the ways of ensuring that there is an effective mode of a political osmosis between the rulers and the ruled; that the rulers embody the – often – mystical, organic or even physical identity of the ruled;1

1

Closely related to this question is the mode of interpretation of Article 2 of the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples which states: ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’ (emphasis added). ‘Freely’ here means freely from internal and external influence, the entitlement of all individuals to democratic representative government and to basic human rights. Self-determination is not merely the right of the governments but a human right, exercised collectively by individuals. Thus, the oppressive, authoritarian government is not ‘licensed’ to rule by Article 2 of the 1960 Declaration.

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IS THERE AN EMERGING RIGHT TO AUTONOMY? SUMMARY REFLECTIONS, CONCLUSIONS AND RECOMMENDATIONS Another facet of the problem is the question whether the territorial component should be viewed as a sine qua non of the existence of a ‘minority group worth its name’. The answer given by the authors of the book is that territory, for all its importance, cannot be the ultimate criterion for the entitlement to ‘autonomy’, because the human dimension of the latter, i.e. the existence of a particular group bonded by common ethnic, linguistic, religious, or other characteristics, is the most important factor legitimising the claim to autonomy; Thus, any attempts – present or future – to conceptualise a right to autonomy should take into account the following minimum requisite preconditions: • •

•

measures to ensure effective participation in national – federal and local – government; measures to ensure fair participation of members of minorities in mainstream economic activity, including the allocation of resources to autonomous areas and equitable employment in the public and major private sectors; measures to ensure appropriate communal balance in law enforcement, including recruitment to the police, the army and the judiciary

There should be a proper workable balance between, firstly, measures directed to ensure integration and provisions aimed at widening the scope of autonomy, and secondly, between legislative provisions for the protection of human rights on an individual basis and for more effective means of democratic participation at the group level; In forging a workable autonomous arrangement, special attention should be given to measures aimed at the development of integrated multi-cultural education as well as separate schools for distinctive linguistic and cultural communities; The same kind of measure should be undertaken in respect of minority languages and the development of measures encouraging bi-lingual or multi-lingual capacity and facilities; A proper balance should be struck between local and national approaches to economic participation and development, especially for disadvantaged rural, ethnic and indigenous communities; Any workable autonomous arrangement should be the result of a detailed discussion and negotiation with representatives of the minorities concerned. The imposition of any measures without the active involvement of those most directly affected by them is unlikely to be effective; In this respect, there should be a distinction made between those claiming to represent vulnerable groups by stirring up ethnic division and hatred, and those who genuinely reflect the wishes of the broad range of people within their community; The provision of adequate financial or administrative support to the autonomous areas is of crucial importance, because otherwise any seemingly positive

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ZELIM A. SKURBATY autonomous institutions on a territorial or functional basis will prove to be ineffective and add to the inter-group tension and distrust; Most important of all, however, are formal constitutional provisions, within the limits of international standards, which alone can back up and guarantee measures intended to consolidate the autonomous arrangements, as well as protect any such measures from claims that they are contrary to the principles of individual equality and non-discrimination; And last, but not least, is a recognition in this area – on the part of all stakeholders – of the value of developing flexible principles and guidelines as opposed to formal and prescriptive legal rules. They could be captured in the following statements: •

•

only flexibility on the part of sub/state groups and openness to challenges posed by day-to-day realities can encourage state authorities to make informed and appropriate choices in relation to their particular situations with the disadvantaged groups; and, only the same flexible mindset and attitude on the part of the States can ‘decalcify’ the often hardened and uncompromising stance of a disgruntled minority group and compromise on the questions related to the scope of autonomy and even secession.

This is the ultimate message sent to those trying to fashion a hypothetical ‘right to autonomy’ and to those with a stake in the minority and autonomy issues raised by the authors of the present volume, addressed by the Lund, Hague and Oslo Recommendations developed within the Organisation for Co-operation and Security in Europe, and examined in state reports under the European Framework Convention on the Protection of National Minorities.

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INDEX

Age of Autonomy, xliv Åland Islands, 38, 39, 247, 251, 380, 381, 382, 383, 384, 385, 386, 387, 390, 391, 525, 527, 529, 530, 531, 533, 534, 535, 536, 538, 539 1920 Autonomy Act, 386, 388, 389, 537 1991 Autonomy Act, 388, 390, 391, 537 Council of Ministers, 529 Finnish government, 312 Helsinki Treaty, 529, 532, 539 home rule, 525 Landsting, 529 self-government, 381, 386, 387 Swedish, 389 Swedish language, 527, 528 the right of domicile, 388, 390, 391, 392 Austria, 285, 286, 290, 294, 295, 299 autonomy, xxxiii, xxxv, xxxvii, 47, 54, 55, 57, 60, 63, 64, 71, 154, 474, 482, 485 abolition of, 246, 253 accommodation, xix, xxv, xxvi, 321, 334, 489, 490, 491, 494, 497, 501, 556, 559, 562, 564 assimilation, xxv, xxxiv, xxxv, xlv, 70, 74, 76, 77, 217, 218, 221, 223, 224, 228 asymmetrical, 565 autonomous agent, 178, 180, 183, 185, 188 autonomous areas, 529, 531, 539 autonomous territories, 525, 528, 529, 530, 531, 533, 538

autonomy arrangements, xix, xxiv, xxvi, 565, 566, 568 autonomy regimes, xxxvi, xliii, 48, 59, 243, 244, 245, 246, 247, 248, 249, 250 autonomy statute, 290, 303 bilateral agreement, xxxvii, xxxix, 248, 250, 251 central government, 83, 84, 92, 473, 477 central legislation, 87, 89 centralism and federalism, 83 centralist states, 83, 84, 88, 90, 101 collective autonomy, 192, 193, 197, 200, 201 communitarian autonomy, 197, 198 concept of, 153, 177, 185, 186, 188 conceptual status of, 192, 193 conflict transformation, 162, 166, 168, 175 consociationalism, 4, 31, 37 cultural autonomy, liv, 195, 199 decentralization, 98 deliberative (de facto) autonomy, 171 democratic autonomy, 197, 200, 209 distribution of powers, 283, 302 emerging right to, xxxiv, lviii ethnic mobilisation, 47, 59, 61 extensive autonomy, 337, 339, 340, 345 federal constitution, 87, 98, 99 federal states, 99, 100, 101 federalism, 278, 289, 302 functional autonomy, 325, 326 group rights, xxiii, 63, 64, 66, 79, 569

INDEX 545, 548 heterogeneity, xxxiv, xlvi homogeneity, 88, 97, 243 independence, 83, 99, 279, 280 institutional agreements, 111 integration, xxvi, xxxiv, xxxv, li, 69, 76, 224, 243, 277, 278, 279, 280, 281, 287, 289, 292, 293, 300, 302, 303, 304, 351, 355 integrationist, xix integrationist approaches, xxiv, xxxi, xlv, 337, 338, 339, 340, 345 interdependence, 83, 177, 188 international guarantees of, 243 juridical approach, xxxvi, xxxix, xlv legal (de jure) autonomy, xlix, 171, 203, 209, 560 limited autonomy model, 337, 340, 341, 343, 345, 346, 347, 348, 349 local governments, 83, 89, 92, 93, 94, 101 local jurisdictions, 95, 100 local legislation, xxxix, l, 249, 250, 251 majority rule, 566 mature systems, 303 means of conflict resolution, 53 moral autonomy, 183, 187 multilateral treaty, xxxix, l, 248, 249, 250 non-international conflicts, 47 paradoxes of, 191, 208 personal autonomy, xxxvii power sharing, xlv, lv, lvii, 18, 21, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 41, 45, 565 pros and cons, xlii, xlvi, xlviii, 47, 58 protective autonomy, 201, 209 reciprocal autonomy, 203, 210 regionalism, 278, 289, 302, 356 responsibility, 166 570

right to autonomy, 57, 153, 565, 567 self-governance, 331, 332 self-government, xxxiii, xxxvi, xxxvii, xxxix, xlvi, xlix, l, lvii, 47, 48, 51, 56, 57, 58, 60, 61, 155, 156, 234, 243, 245, 253, 334, 338, 341, 343, 353, 361, 373, 381, 385, 386, 393, 395, 401, 404, 405, 408, 413, 415, 418, 490, 493, 529, 531 self-rule, xxxv, xliii, xliv self-sufficiency, 178, 181 sub-national entities, 280, 285, 286, 288, 289, 292, 301, 303 territorial autonomy, xxxvi, xlvi, xlviii, 47, 55, 57, 58, 59, 60, 62, 154, 156, 199, 203, 205, 208, 210, 279, 325, 327, 328, 565 territorial integrity, 494 variegated autonomy, 204, 210 Badinter Commission, xxxix, xl, 75, 157, 196 opinions of, xl Balkans, 489, 490, 492, 495, 496, 498, 499, 501 Basque region, 246 Belgium, 285, 286, 288 Bosnia and Herzegovina, 27, 36, 159, 195, 200, 202, 264 Capotorty Francesco, 81 Catalonia, 246 Caucasus Abkhazia, 50, 157, 322 Ajaria, 322 Chechnya, 157 Georgia, 50, 154, 322 South Ossetia, 322, 473 citizenship, 4, 14, 16, 44, 193, 194, 195, 196, 208 multicultural citizenship, 211, 212, 222 Colombia, 353, 357, 367, 370, 372

INDEX condominium, 168, 171, 174 confederative states, 551 conflict resolution, xxvi, liii, lv, lvi, 54, 163, 166, 278, 279 constitution, 353, 357, 358, 360, 363, 368, 369, 371, 372, 373, 374 constitutional guarantees, 473 constitutional law, 279, 302 constitutional settlement, 474, 486, 487 Council of Europe, 305, 306, 308, 312, 317 countries in transition, xxvi Crimea, 322, 328, 334 crimes against humanity, 258, 264, 269, 270, 271, 272, 275 cross-border cooperation, 278, 279, 280, 282, 283, 289, 296, 299, 300, 301, 303 cultural disadvantages, 211, 212, 214, 215, 216, 217, 221, 222, 223, 224, 225, 226, 228, 229 cultural diversity, 48 cultural groups, 212, 217, 219, 221, 222, 224 cultural membership, 214, 225 disadvanteged groups, 227 group-differentiated legal rights, 211, 212, 213, 214, 215, 216, 218, 219, 220, 221, 222, 223, 224, 225, 227, 228 modest disadvantage criterion, 216, 224, 228 modified disadvantage criterion, 216, 224 pure disadvantage criterion, 215, 221, 224 strict disadvantage criterion, 216, 224 Cyprus, 475, 479, 485

constitution, 478 constitutional settlement, 478 Greek Cypriots, 477, 483, 485 Turkish Cypriots, 476, 477, 483, 485 Turkish Republic of Northern Cyprus (TRNC), 477, 480 Daes Erica-Irene A., 68 decentralization, 324, 326, 334, 473 democracy Lijphart’s theory of consociational democracy, 52 Denmark, xxiv, xxvi, 311, 312, 526, 527, 529, 530, 533, 534 Copenhagen Declaration, 461, 465 Danish Constitution, 459, 465, 466, 468 Danish crown, 526 Danish minority, 458, 460, 461, 462, 463, 467, 469, 470, 471 Danish-German Border Area, 457, 470, 471 Danish-German model, 457 Frisian minority, 461, 469 German Constitution, 465, 466, 469 German minority, 457, 458, 460, 461, 462, 463, 466, 468, 469, 470 Schleswig-Holstein, 458, 461, 462, 467, 468, 469, 470 the Bonn-Copenhagen Declarations, 457, 460, 461 devolution of power, 255, 545, 549, 553, 554, 557 discrimination, 59, 60, 72, 80, 212, 213, 222, 461, 462, 466, 553, 557, 560, 561 positive discrimination, 553 racial discrimination, 554 economic and social rights, 571

INDEX 17 Eritrea, 401, 402, 404, 405, 407, 409, 412, 415, 417, 418 1947 Paris Peace Treaty, 406 armed liberation struggle, 404 Ethiopia, 401, 402, 403, 404, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 417, 418 Ethiopian Constitution, 403, 409, 411 Federal Act, 407, 408, 410, 414 Haile Selassie, 409, 410, 412, 418 Italian minority, 405 Italy, 401, 404, 405, 406, 415, 417 Soviet Union, 416, 418 UN Commissioner for Eritrea, 402, 410, 411, 412 Estonia, 421, 422, 423, 424, 425, 428 Constitution, 421, 426 cultural autonomy, 421, 422, 423, 424, 426, 428 cultural self-government, 422, 423 minority groups, 421, 422, 425, 426, 427 minority members, 422, 423, 427 minority rights, 424 national minorities, 421, 422, 423, 426, 427 National Minorities Cultural Autonomy Act, 421, 423, 427 right to self-rule, 423 Russia, 422, 424, 425, 427 self-government, 426 State Integration Programme, 425 ethics, 542, 544 ethnic conflicts, 500 European Convention for the Protection of Human Rights and Fundamental Freedoms, 262, 461 Euroregions, 281, 295, 301 572

European Union, 525, 532, 534, 536, 537, 538, 539 the principle of ‘subsidiarity’, 155 exploitation, 549 Faeroe Islands, 231, 525, 526, 529, 530, 531, 532, 533, 535 home rule, 235, 525, 530, 531 Lögting, 526, 529 Rigsombudsmand, 526 federalism, 83, 86, 87, 89, 91, 94, 100, 481 administrative federalism, 86, 87, 88, 95 century of federalism, 102 fiscal federalism, 95, 101, 102 Fiji, 14, 17, 18, 19, 23, 28, 35, 36, 37 Finland, 306, 311, 318, 380, 382, 383, 387, 388, 390, 391, 527, 532, 533, 535, 536, 537 Former Yugoslav Republic of Macedonia (FYROM), 322, 328, 329 Frisian minority, 458, 459 Gagauzia, 322 ‘weak state syndrome’, 455 Bashkan, 437, 439, 451, 452 Communist Party, 432, 448, 449, 450, 452 Crisis of 2002, 449 de-Russification, 433 Gagauz language, 437, 449, 450 Gagauz people, 432, 433, 434, 442, 445 IMF and the World Bank, 440 legal status of Gagauzia, 431, 434, 435, 440, 442, 447, 448, 453 Moldovan Constitution, 434, 450, 454 OSCE Moldova Mission Report, 444 Republic of Moldova, 22, 322,

INDEX 429, 434, 435, 437, 439, 440, 442, 446, 447, 449, 450, 452, 453, 454, 455 Transdniestria, 322, 429, 431, 433, 434, 436, 439, 440, 441, 442, 447, 450, 452, 455. Se Turkey, 439, 444, 445 genocide, 339 Genocide Convention, 258, 269 Germany, 285, 301, 457, 458, 459, 461, 462, 463, 464, 465, 466, 468, 469, 470, 471 Greece, 475, 476, 477, 480, 484, 485 Greenland, xxvi, 231, 232, 233, 236, 237, 238, 525, 526, 527, 529, 530, 531, 533, 534 Commission on Home Rule, 231, 232, 234 Danish Realm, 232, 234, 239 Greenland Home Rule, 233, 234, 235, 238, 525, 534 Greenland Home Rule Act, 231, 235, 237, 238, 249, 527 Greenland Provincial Council, 231, 232, 236 Kalaallit Nunaat, 526 landsstyre, 235, 237 Landsting, 527 Rigsombudsmand, 527 home rule, l human rights, 60, 63, 64, 65, 66, 67, 79, 82, 153, 155, 158, 159, 265, 340, 344, 355, 365, 366, 371, 379, 380, 381, 382, 383, 385, 387, 388, 392, 393, 394, 503, 509, 510, 516, 517, 542, 544 Human Rights Committee, 78, 80 international human rights law, xxi, 259

identity, xxxiv, 63, 81, 479, 484 cultural identity, 100, 102 ethnic identity, 54, 59, 100 immigration, 546 independence, 231, 239 India, 17, 20, 25, 31, 41, 42, 264, 543, 550, 552, 557, 560 indigenous peoples, 7, 8, 9, 11, 12, 13, 14, 15, 18, 19, 40, 44, 45, 51, 57, 231, 337, 340, 341, 343, 344, 345, 346, 347, 351, 353, 355, 356, 361, 362, 363, 364, 366, 367, 369, 370, 372, 375, 527 Confederation of Indigenous Nationalities, 364, 367 constitution, 361 de-colonisation, 356, 375 Draft Declaration on the Rights of Indigenous Peoples, 12, 340, 342, 346 ethnic citizenship, 354 ILO Convention No. 169, 362, 371 indigenous autonomy, 351, 352, 354, 356 indigenous groups, 337, 340, 342, 343, 344, 345, 346, 348, 353, 354, 359, 369, 371, 372 indigenous persons, 358 indigenous populations, 351, 352, 353, 356, 364, 365, 367, 368 indigenous rights, 337, 338, 339, 340, 342, 348, 355, 356, 366, 367, 371 indigenous self-determination, 352 indigenous territories, 357, 373 internal colonialism, 373 land (right to), 340, 341, 344 multiculturalism, 355, 359, 360 Permanent Forum on Indigenous 573

INDEX Issues, 261 Working Group on Indigenous Populations, 261, 341, 342, 354, 355 international law, xx, xxiii, xxv, 11, 13, 47, 48, 49, 54, 55, 57, 60, 62, 66, 67, 68, 69, 79, 82, 153, 154, 157, 244, 247, 253, 258, 259, 263, 268, 269, 273, 274, 280, 282, 292, 296, 379, 381, 382, 383, 384, 408, 413, 565 EC law, 283, 284, 289 International Court of Justice, 163, 165 International Covenant on Civil and Political Rights, 67, 71, 80, 163 Optional Protocol, 68 International Covenant on Economic, Social and Cultural Rights, 259 International Criminal Court, 255, 268, 269, 271, 272, 273, 274, 275 international criminal law, 255, 256, 258, 263, 264, 268, 275 International Law Commission, 258 international treaties, 285, 286, 289, 302 travaux préparatoires, xlvi, 47, 78 treaty making power, 285, 286 Inuit, 231, 236, 527, 533 jus cogens, 158 Kant, 182 Immanuel, 182, 183, 185, 186 Kosovo, 157, 252, 253, 379, 380, 381, 382, 384, 385, 387, 392, 393, 394, 490, 493, 497, 500 Constitution of Kosovo, 392, 393, 394 Federal Republic of Yugoslavia, 574

381, 386, 392, 394 Interim Agreement for Peace and Self-Government in Kosovo, 386 Rambouillet Accords, 385, 386, 392, 395 UN S.C. Resolution 1244 (1999), 381, 385, 386, 392, 393 Kymlicka Will, 212, 222, 226, 228 Latin America, 22, 351, 353, 354, 356, 357, 361, 364, 366, 367, 369, 370, 371, 372, 374, 375 League of Nations, li, liv, 251, 380, 381, 383, 390, 528 Council of the League of Nations, 382 legal status of people, 174 local state, 113, 115, 131, 132, 133, 143, 144 institutions, 115, 133, 135, 136 NGOs, 117, 121 state capacity-building, 136 Memel, 246, 247, 248 Mill John Stuart, 182, 184, 185 minorities, 243, 244, 245, 568 Advisory Committee, 305, 308, 309, 310, 311, 312, 313, 314, 315, 317, 318 Opinions of, 306, 318 Opinions of, 311 Article 27 of the International Covenant on Civil and Political Rights, 63, 74, 75, 78, 79, 80, 81, 82, 243, 244, 260, 262, 379, 384, 385 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 9, 260, 308, 339, 384 effective participation of minorities in public life, 321, 322,

INDEX 325, 329 ethnic conflicts, 7, 10, 38, 40, 154, 157, 491, 492, 494, 495, 498, 501 ethnic groups, 111, 493, 494, 495, 497, 499 ethnic minorities, 198, 425 Explanatory Report, 305, 307, 309, 320 Framework Convention for the Protection of National Minorities, xxxix, xlv, 262, 305, 306, 309, 310, 312, 315, 316, 319, 320, 428 legislative representation, 19, 43, 44 Lund Recommendations, xx, xxi, xxii, xlv, xlvi, 11, 18, 51, 154, 331, 332 minority conflict, 50, 52, 57 minority cultures, 156 minority group members, 260, 262, 274 minority groups, 47, 53, 62, 211, 228, 256, 260, 263, 264, 273, 274, 337, 339, 347, 567, 568 minority identities, 566 minority languages, 567 minority rights, xx, xxii, xxiv, 47, 48, 49, 50, 52, 55, 58, 60, 62, 65, 66, 71, 76, 80, 81, 153, 156, 157, 159, 212, 216, 221, 223, 226, 255, 256, 257, 259, 260, 261, 262, 263, 264, 267, 268, 269, 271, 272, 275, 307, 316, 317, 318, 320, 337, 348, 379, 380, 383, 421, 490, 493, 503, 541, 551, 552 Minority Rights Group, 306, 316 minority rights regimes, 201 national minorities, xxxviii, xlv, lii, lv, 3, 8, 10, 15, 18, 21, 37, 38, 41, 245, 305, 306, 309, 310, 311, 312, 314, 315, 319, 441, 461, 463, 464, 467, 568 non-recognition of minorities, 64

numerical factor, 71 persons belonging to, 8, 10, 51, 52, 72, 243, 244 political participation of, 52, 53 public participation, 3, 4, 6, 7, 8, 14, 17, 28 representation, 4, 7, 10, 15, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 35, 39, 40, 44, 45 modus vivendi, 65 nationalism, 163, 382, 499, 505, 508 civic nationalism, 499 ethnic nationalism, 499 hypernationalism, 496 New Zealand, 12, 13, 18, 23, 24 non-discrimination, 461 Nordic co-operation, 525, 529, 531, 533 Nordic Council, 525, 528, 529, 530, 531, 533, 539 Nordic Council of Ministers, 525, 529, 530, 531, 532, 538 Northern Ireland, 32, 33, 37, 41, 301, 508, 509, 512, 514 Good-Friday Agreement of 1998, 301 Nuremberg and Tokyo Tribunals, 256, 257, 270, 272 OSCE, 10, 16, 321, 322, 323, 324, 325, 326, 327, 329, 333, 334, 335, 430, 439, 440, 443, 444, 445, 446, 450, 451, 452, 491 ‘human dimension’, 306, 326, 327, 333, 385 1990 Copenhagen Document, 10, 11, 154, 324 1990 Copenhagen Meeting, 323 Charter of Paris for a New Europe, 15, 323, 325, 326 575

INDEX CSCE, 10, 11, 15 High Commissioner on National Minorities, 10, 51, 155, 328, 329, 330, 331, 332, 333, 334 Lund Recommendations, xlvi, 333 Meeting of Experts on National Minorities, 325 Palestinian autonomy, 247, 248 participation, 305, 306, 307, 308, 309, 310, 311, 313, 316, 317, 318, 319 people, 161, 163, 164, 166, 171, 174, 244, 245, 246, 383, 384 PLO, 248 power relation, 106 Pro Patria Mori, 63 public goods, 84, 86, 88, 89, 95, 98, 101, 105, 107, 109, 110 Rawls John, 186 referendum, 383 Romania, 306, 310 Rousseau Jean-Jacques, 182, 184 Rwanda, 196, 197, 255, 264, 266, 267, 272 Sami, 533 Sami people, 532 secession, xxv, xliii, xlvi, xlviii, xlix, liv, 47, 49, 50, 54, 55, 56, 59, 60, 61, 155, 157, 158, 165, 166, 168, 169, 171, 196, 198, 201, 202, 246, 247, 279, 280, 303, 381, 382, 390, 492, 493, 568 secessionist demands, 47 'Self' and 'Other', 162, 163, 164, 165, 166, 174 self-determination, xxv, 5, 7, 576

8, 12, 13, 47, 49, 50, 52, 54, 55, 56, 57, 60, 61, 62, 65, 66, 69, 70, 74, 75, 78, 80, 163, 164, 165, 168, 169, 193, 194, 244, 279, 293, 326, 329, 337, 338, 340, 341, 343, 344, 345, 346, 347, 348, 349, 357, 373, 374, 380, 381, 382, 383, 384, 385, 386, 404, 413, 414, 415, 417, 418, 491, 494, 500, 541, 542, 543, 544, 545, 549, 550, 551, 552, 553, 563, 564, 566 external self-determination, xxxv, xlii, l, 245, 493 internal self-determination, xxxv, xxxviii, liv, 47, 53, 245, 343, 490, 491, 492, 493, 500, 566 right to self-determination, 161, 163, 164, 166, 174, 193, 236, 356, 373, 374, 554, 558 semantic indeterminacy, xxxii Serbia, 322 Serbian, xl Serbs, 194, 195, 198, 208 social capital, 103, 104, 105, 106, 107, 108, 109, 111 cohesion, 104, 132, 133, 140, 142 exchange, 104, 106 identity, 105, 110 structure, 103 South Africa, 4, 17, 31, 33, 34, 35, 39, 43 South Asia, 541, 542, 546, 549, 554, 564 Bangladesh, 255, 546 Hindus, 543, 547, 548, 553 Muslims, 543, 548, 562 Nepal, 548 Pakistan, 264, 543, 550, 551, 552 Sri Lanka, xxiv, 545, 552, 555,

INDEX 556 Tamils, 552, 554, 555 South-East Europe, 113, 114, 115, 116, 117, 119, 120, 121, 123, 124, 125, 127, 135, 136, 137, 138, 139, 142, 143 sovereignty, 49, 50, 51, 53, 54, 55, 62, 64, 70, 74, 80, 162, 164, 165, 171, 246, 248, 250, 251, 253, 263, 280, 293, 298, 303, 343, 344, 346, 349, 380, 381, 383, 386, 392, 402, 404, 406, 407, 527, 538, 542, 544, 545, 546, 552, 563, 564 functional sovereignty, 168, 174 joint sovereignty, 174 legal sovereignty, 256 national sovereignty, 277, 380, 527 special measures, xxi, 6, 7 state centralist States, 293 kin-State, 327 multi-ethnic states, 6 national identity, 161, 166, 174 nation-states, 277, 544 non-state nations, 544 state integrity, 161, 166, 174 state-nation dialectic, 161 structural violence, 162 subsidiarity the principle of, 51, 53, 56 Sweden, 380, 381, 383, 387, 388, 527, 529, 530, 533, 536 Swedish Government, 331 territory, 72, 74, 75, 78, 81, 162, 163, 165, 167, 170, 171, 174 territorial arrangements, 155 territorial integrity, 49, 53, 66, 80, 155, 156, 158, 246, 253, 380, 386, 392

territorial organization, xxxvi territorial self-governance, 155 territorial sovereignty, 58 tolerance, 81, 162, 168, 170, 307, 308, 544, 549, 562 transcend, 161 Trentino - South Tyrol, 277, 278, 279, 289, 290, 292, 293, 295, 296, 299, 301, 302, 303, 304, 489, 490, 491, 492, 493, 494, 495, 497, 499, 501 Autonomous Province of Bozen/Bolzano, 293, 297, 299 cross-border cooperation, 277 Trentino-Alto Adige model, 103 Turkey, 475, 476, 477, 480, 484, 487 United Kingdom, 505 Anglo-Irish Agreement, 507 Belfast Agreement (Good Friday Agreement), 508, 515, 519, 521 British Constitution, 503 cross-community support, 512, 515, 519 culture, 512, 518, 519, 520 devolution legislation, 503, 504, 506, 507, 508, 510, 511, 512, 514, 515, 516, 517, 520, 521 Downing Street Declaration, 508 Equality Commission, 517 Scotland Act 1998, 503, 507, 509, 510 Scotland and Wales, 503, 504, 505, 506, 507, 513, 516, 522 Standing Orders, 512, 516, 517 Wales Act 1998, 503, 507, 509 United Nations ECOSOC resolution 1503, 262 ICTR (International Criminal Tribunal for Rwanda), 263, 264, 267 ICTY (International Criminal Tribunal for the Former 577

INDEX Yugoslavia), 263, 264, 266, 267 UN General Assembly, xxi, 247, 250, 253, 258, 260, 261 UN Security Council, 246, 247, 250, 252, 253, 254, 255, 264, 268, 274, 476, 477 UN Security Council Resolution 780, 266 UN Sub-Commission, 73 United States, 341, 344, 345, 347 Universal Declaration of

578

Human Rights, 259 uti possidetis, 157, 158, 263 Yugoslavia, 85, 86, 100, 113, 154, 155, 157, 159, 162, 165, 167, 171, 173, 174, 194, 195, 196, 198, 205, 208, 209, 246, 252, 260, 264, 329, 489, 495, 496 former Yugoslavia, 113, 116, 117, 118, 255, 264, 265, 266, 267, 272 Zelim Skurbaty, 161

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