Territorial Autonomy: A possible solution of self-determination conflicts?
Conference “Autonomy for Papua – Opportunity or Illusion?”, 04-05.06.2003
by Hans-Joachim Heintze
History provides many examples of conflict situations where a disgruntled, territorially concentrated minority has demanded statehood on the basis of the right to self-determination.1 The typical reaction of the concerned State is the rejection of this claim, very often enforced by military power which in many cases results in a tragic and bloody war. This experience has led to increased debates about peaceful solutions of self-determination conflicts. The strict respect of minority rights is a precondition to reach this goal. An important aspect of the implementation of minority rights are provisions concerning political participation of minorities in the State they live in. According to the 1995 European Framework Convention for the Protection of National Minorities, States “… 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.”2 From a formal point of view, this obligation is legally binding to the State Parties of this European Convention, but in principle it is also accepted as part of customary international law. However, the exact content of this international law obligation has not been determined yet. Even the Framework Convention, which contains the only obligation expressis verbis, is formulated in a rather vague language, i.e. only in programmatic terms which do not create any standard as to the different mechanisms to be applied in order to reach the aim of securing participation.3 The approach of the Framework Convention is symptomatic for all norms dealing with minorities world wide. These norms are in need of effective implementation to develop case-by-case solutions. There is no automatism of success unless the parties to a minority issue are willing to co-operate in the field of implementation of minority rights. Even a democratic system in itself does not automatically provide a solution unless it offers opportunities of the devolution of powers which is one possible way to reach the goal of effective political participation of minorities.
First step to autonomy: minorities have a right to organise themselves
One fundamental precondition for the implementation of minority rights is the possibility for a minority to organise including the pleading of its case in the political sphere through a specific party representing the minority.4 Participation starts with dialogue and participation facilitates dialogue. Through participation in decision-making bodies, representatives of minorities have the possibility to present their positions directly to the State authorities. Integration through participation is an element in forging links of mutual understanding and loyalty between the State and the minority community.5 Therefore, a general prohibition on establishing parties of minorities, as is e.g. the case in Turkey,6 is not in accordance with internationally accepted minority rights as long as these parties promote the identity of the minority peacefully, without inciting hatred among the different groups of the population: According to jurisprudence of the European Court of Human Rights (ECtHR), the demand for parties of minorities is in principle in line with the rights of persons belonging to minorities as long as this goal can be reached by peaceful means. The relevant Article 11 of the European Convention on Human Rights (ECHR) allows restrictions of the freedom of association only if an organisation or party calls for the use of violence, an uprising or any other form of rejection of democratic principles. However, the ECtHR rejected the justification of an interference with the freedom of association on the grounds that the party in question made reference to the ‘right of self-determination’ of the national minority without in any way encouraging separation from the State the respective minority is living in.7 In the light of that decision, the pure demand of self-government and autonomy is not only not prohibited, but somehow a natural consequence of the acceptance of minority parties by human rights law. The lawfulness of such demands may on the one hand explain the interest of minorities in self-government; on the other hand there are practical advantages for such autonomy regulations. Hence, practice shows an increasing acceptance of autonomy regulations not only in Europe, but also in other parts of the world.
Positive historical experiences
The concept of autonomy and its relationship to minority protection has been a topic of legal considerations at least since the settlement of the Åland question at the League of Nations after the end of the First World War. In 1917, a dispute arose between Sweden and the newly independent Finland over the status of the Åland Islands. Sweden demanded from Finland the recognition of the right of the Ålanders to determine their future status, but Finland insisted on its sovereignty over the islands. Both States agreed to submit their dispute to the League of Nations, which recognised Finland’s de jure sovereignty over Åland. Concurrent with the debate in the League of Nations, Finland granted autonomy to the Åland Islands to ensure that the result of the settlement would be in favour of Finland.8 Obviously, the League appreciated this step by Finland. The Åland case has shaped a positive image of autonomy as a means of minority protection. However, this example indicates also, that autonomy is not a static concept. There has always been a need to meet the challenges of the time. Thus, in 1921 the League of Nations demanded from Finland certain improvements of the autonomy regulations concerning guarantees of that status. After the Second World War and the dissolution of the League of Nations, a new Ålandic Autonomy Act was enacted which specified the jurisdiction of the Ålandic Assembly and created a specific regional citizenship, the so-called right of domicile. This Act was replaced by a new Autonomy Act in 1991, which improved the autonomy and the preservation of the Swedish character of the islands once more. The need for a new act arose due to trends in Europe towards multicultural societies and an increased use of different languages. The example of the Åland Islands underlines that autonomy is a living instrument. The concepts of autonomy and self-government are not only well-known because they are used in the context of minority protection. It is noteworthy that the travaux préparatoires (preparatory works) to the UN Charter concerning the trusteeship territories already clearly referred to ‘self-government’,9 which was conceived as denoting autonomy but not independent statehood. This position was underlined in respect to the trusteeship system, in which ‘self-government’ is not to be confused with ‘self-determination’.10 Although the concept of autonomy is not even within the UN a new idea, the organisation was not able to overcome the legal grey areas which are linked with that idea. The process of establishing statehood in former trusteeship territories to a large extent shows confusion about the term autonomy (or self-government) as well as the content of self-determination, minority rights and autonomy. Because of the confusion about the terms autonomy, self-government and self-determination it is not surprising that many States still have a hostile, or at least reluctant, attitude towards self-government and autonomy regulations. In particular concerning territorial autonomy, there are strong fears that demands of minority groups will weaken the effective power or even the existence of the State. Ethnic conflicts have become a primary source of international concern. These conflicts culminated after the Cold War with the eruptions in Former Yugoslavia and the Soviet Union and the dissolution of both federations. In other cases ‘ethnic mobilisation’ among minorities in multi-ethnic States has led to demands for self-rule or secession.11 Under these circumstances where nearly all armed conflicts involve non-international conflicts between ethnic groups, there is a need to look for practical solutions which on the one hand enable the survival of the existing States according to the uti possidetis principle12 – which stipulates that the successor State should follow the former boundaries of the predecessor State – and on the other hand ensure the respect for minority and human rights. Despite the fear of States, autonomy is a possible solution which is worth examining.
Autonomy as a result of negotiations
Autonomy is an indefinite and general legal term that has to be given concrete content in each case.13 Organisational as well as substantive rules for 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.14 The essential element of autonomy is the granting of certain rights to a specific part of the State’s population, in view of its characteristics, which differ from those of the majority of the population. Linguistic, cultural and ethnic minorities are the prototypes of groups which need protection. They are interested in excluding interference by the State or the majority population as far as their specific background, tradition and way of life are concerned. The aim of any autonomy regime should always be to better implement human and minority rights and therefore to avoid conflicts within the State concerned as well as between States. However, autonomy regulations are necessarily always a case-by-case solution. There is no general rule in international law to grant autonomy to any group, possibly with exception of indigenous peoples.15 One can imagine circumstances in which decentralisation and autonomy regulations do not contribute to the settlement of conflicts but rather create new problems and confrontations among minorities or between the majority and the minority. This is underlined by the OSCE High Commissioner on National Minorities (HCNM): “While decentralisation is an important tool, one must be careful that national standards, such as the rule of law and other essential tenets of democracy, are not eroded in the process.”16 Autonomy is always a result of careful negotiations between States and minorities about content, aims and mechanisms of the kind of self-government. If there is no effective consultation of the minority or if they are consulted, but the results ignored, the regulation will not meet the challenges. The de facto autonomy of Iraq/Kurdistan until 2003 demonstrated that such a kind of autonomy is very vulnerable and at the end, not a durable solution.17 Thus there is always a need for consent between the central government and the minority. The State is, in principle, 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.18 Therefore, one cannot claim that autonomy is a principle of international law and that at least territorial minorities have rights of autonomy within the existing structures of States.19 International law only requires that any authority controlling territory must respect the human rights of everyone, including persons belonging to national minorities. International law affirms the value of cultural diversity and of individual choice. It is in favour of the continuance of cultures and the nexus between individual and collective identity.20 Autonomy regulations are a possible way for the realisation of these aims of international law.
Autonomy and self-determination
Due to the lack of a generally accepted definition of the terms ‘peoples’ and ‘minorities’ in international law, there is a certain overlapping in the scopes of the norms of minority protection and self-determination of peoples. Among scholars, this issue is controversially debated. The Commentary of the UN Charter identifies ethnic minorities living in an ethnically different State as the first holder of the classic right to self-determination.21 Such a description undoubtedly contributes to the confusion about the norm of self-determination 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 3.500 ethnic groups demanded their own States.22 The planet is too small to provide each of them with full sovereignty over a piece of land. A disintegration into hundreds of States is neither realistic nor desirable.23 Even to scholars who view the modern State with deep ambivalence, the prospect of uncontrolled secession is, due to the human and economic costs, a cause for considerable apprehension.24 Thus, there is a need for an international response to demands for secession. The most important element of such an international strategy is to distinguish between demands for secession and less extreme forms of self-determination (that means internal self-government within an existing State). Many experts try to find an appropriate balance between the legitimate concerns of the State and those of minorities and come to the conclusion that minority rights cannot be used as a pretext for breaking up the territorial integrity of the State. Therefore they argue that the norm of self-determination of peoples cannot be based on minority rights.25 Autonomy regulations are in accordance with that approach and fulfil the demand of keeping the number of States as low as possible. This means, compromises must be found to satisfy the aspirations of minorities and other groups. However, not all authors reject the applicability of the self-determination principle. Some experts argue that under very special conditions minorities are entitled to demand independence. According to their opinion, the right to secession prevails over territorial integrity only in the case of severe deprivation of a group’s human rights, especially the rights of a minority.26 Judge Wildhaber identified in Loizidou 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.27 Anyhow, this far reaching viewpoint is not supported by State practice. Even in cases of massive human rights violations, like for example in Kosovo, neither the Security Council nor the community of States (nor the majority of legal scholars) have been in favour of establishing statehood. Practice shows that the international community is not prepared to recognise ethnic groups living within the boundaries of sovereign States as peoples entitled to external self-determination (in the form of having their own independent State). The extension of the right to self-determination might foster internal disputes and even armed conflicts.28 Since secession involves major structural and institutional changes 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 will only be accepted if no less drastic means is available.29 The non-acceptance of secession and the increasing acceptance of human and minority rights explain 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 were considered to be the internal affairs of each State. According to the principle of sovereignty, States themselves freely decide about these questions. This attitude began 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.30 With this resolution the Council has recognised that federalism is a possible way for solving minority conflicts.
Internationally accepted standards of minority rights
Scholars have recommended that the international community may recognise even a seriously destabilising right to self-determination claim as legitimate if a government is widely considered to be unrepresentative.31 This means that it is even more unlikely that the international community would support a secession claim if the government in question is considered to represent the people living within the territorial boundaries of that State. But what happens if in such a State a minority exists which the government does not represent? In that case an autonomy regulation may be the answer. In the past, autonomy status has often been seen as a consequence of practical considerations. It has been argued that in cases in which the population is small or the territory cannot conceivably fulfil the requirements of a sovereign State, only autonomy regulations are sufficient.32 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 colonisation. However, in all cases the desirable high level of a group’s self-government did not abrogate the duty of loyalty encompassed by citizenship.33 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, language and religion can be exercised, it is sometimes argued that one cannot find any apparent reason for conflict and resistance.34 However, 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 by way of national legislation. Human rights are applicable for all inhabitants, including the people belonging to minorities. But especially in the field of civil and political rights the national laws may not respond to their specific needs and the effect is limited to the State’s duty to remain passive and to refrain from interference in the individual rights.35 This approach may not ensure effective participation of the minorities in governmental affairs and in the access to political power. There is also a need for economic justice and the prohibition of exploitation of natural resources on the back of the local population. To overcome the shortcomings of an only formally equal treatment of the majority and minority many experts recommend some affirmative action measures. One recent attempt in that direction are the ‘Lund Recommendations on the Effective Participation in Public Life’.36 These recommendations were elaborated at the request of the OSCE-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 part dealing with ‘self-government’ which could also be paraphrased as autonomy. Experts recommend that functions which are generally exercised by central authorities, such as defence, foreign affairs, immigration and customs, macroeconomic policies and monetary affairs, stay with the State in order to prevent any separatist movement. They plead, however, that education, culture, language, religion, environment, local planning, natural resources, economic development, local policing functions, housing, health and social services fall under the responsibility of an autonomous entity according to the principle of subsidiarity and to the specific circumstances.37 This entity has to ensure that minority rights are more than only the safeguarding of political human rights of the persons belonging to minorities, and, in addition, rather contribute to the preservation of the identity of the minority.
Minority protection and majority rule
Political participation of minorities is an expression of and a necessity for democracy. However, democracy is often characterised as majority rule. Democracy rests on the assumption that majorities can change and that incumbents of political posts are subjected to time limits. Depending on the will of the voters, the political majority of today might become the political minority of tomorrow. The power of the majority is not limited in scope because it does not have to share it. 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. ethnicity, history) unless they pay the price of losing their identity (e.g. culture or language).38 These minorities may suffer even under a Westminster-style democracy (according to the principle “the winner takes it all”). If the predominant cultural majority is large enough, it might not take the minority into account. Under a winner-takes-it-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.39 This explains why one can find minority conflicts in States with democratically elected governments which respect internationally codified human rights. It explains also that the Westminster type of government does not work in many heterogeneous societies.40 In heterogeneous societies the ultimate objective of free elections should be a participatory democracy or, as the European Commission of Human Rights demanded: “… not ‘democracy’ but a ‘democratic society’: the majority must consider the interests of all groups and peoples in the State, not merely those of its supporters”.41 Therefore, one has to turn to concepts of so-called participatory democracy, which postulate open public debates in search of a 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 in itself is not sufficient without institutions of governance that are a direct expression of democratic self-determination.42 The theory of a consociational democracy offers solutions for this contradiction between the Westminster-style democracy and an effective participation of minorities in public affairs. The model of consociational democracy has four main characteristics, namely coalition government, the proportionality principle, minority veto and segmental autonomy.43 The model makes political participation of minorities in national policy decisions as optimal as possible, because it allows protection and promotion of their own characteristics by the minority veto in cases in which their identity is concerned. 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.44 In this sense the Canadian Constitutional Court stated concerning the Quebec Secession Reference that democracy implies more than mere majority rule. It noted that democracy is not simply concerned with the process of government. On the contrary, democracy is fundamentally connected with substantive goals, most importantly the promotion of self-government which accommodates cultural and group identities.45 Even scholars, who consider the approach of the consociational democracy only “superficially attractive”, accept that for regional government, appropriate autonomy and subsidiaritiy is to be commended. However, this should, in their opinion, not be confused with a written constitution intended to reflect ethnic differences within the State.46 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 by minority groups for broader political and economic power.47 Autonomy has the capability to satisfy the aspirations of an ethnic minority for a degree of political power while preserving the territorial integrity and sovereignty of the State. Although rarely employed by States, it is therefore often seen as an instrument of conflict resolution between the demands of a group for more independence and the rights of the State to territorial integrity.48 The main advantage of an autonomy regulation follows from the fact that the suppression of groups and minorities calls forth their resistance, thus disturbing public order. This opposition can also impede the exchange and communication between different groups of the population. The principle of subsidiarity, on the other hand, promotes a productive participation by minorities in the State. This assumption is supported by ‘The Congress of Local and Regional Authorities in Europe’ of the Council of Europe in its Recommendation 43 (1998) which states: “… 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 protection of national minorities.” Political and cultural pluralism will have positive effects on the society as a whole, as tolerance facilitates voluntary integration of a minority. People can express their distinct identity and run their own affairs in certain spheres. Autonomy follows from a 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’s features.
Autonomy and conflict resolution
Due to the territorial focus of many current internal conflicts, autonomy has the potential to serve as a conflict-solving mechanism. Practice indicates that the higher the degree of militarisation of a conflict preceding the establishment of an autonomy regulation has been, the less likelihood there is of high autonomy durability.49 Strong international involvement in the elaboration and implementation of the autonomy regulation, however, has a positive effect on its durability. This experience underlines that due to its positive influence on regional stability, in principle, autonomy has an international aspect to it. The expansion and enhancement of economic and political activity as well as the increasing acceptance of human rights have put in question the allocation of authority following from the Westphalian order. Social changes have caused a paradigmatic shift away from a world of States towards a world of diminished State sovereignty. This process is accompanied by the enhanced legitimacy that ethnic identity and national self-determination have received, which is associated with the ‘postmodernist’ preference for local knowledge over global norms.50 However, due to secession fears, usually the government of a State wishes to prevent the autonomous regional entity from acquiring sovereignty. The autonomous entity, on the other hand, is very much interested in getting as many elements of sovereignty as possible. It has even been argued that existing autonomous territories are – as a rule – interested in becoming independent.51 To solve this contradiction means to question the modern understanding of sovereignty. Many scholars have growing doubts concerning the extent and usefulness of the classical concept of sovereignty today and prefer a relative notion of sovereignty, variable in the course of time.52 Practice has shown that the classical meaning of sovereignty as absolute 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 – undermine the idea of absolute sovereignty. Thus, there is a need for ‘contemporatization’ of the notion of sovereignty.53 The concept of autonomy is in line with such a demand, because in a modern understanding of these concepts autonomy and sovereignty are not mutually exclusive.54 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 encouraged groups to claim more participation in their government instead of simply accepting majority rule. However, if people fight for secession and the establishment of a new State they behave in a very conservative way because they are causing a multiplication of States. It is thus 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 towards the nature and structure of State authority. It is, strictly speaking, 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.”55 This is the reason why autonomy regulations are a more fundamental challenge to the conception of State authority than the demand for secession. The changing character of sovereignty is reflected – apart from ethnic questions – world wide 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.
Flexibility of autonomy regulations
It is impossible to achieve a perfect solution regulating the relationship between majorities and minorities. Territorial autonomy is always a compromise because perfect ethnically homogenous territories can – and should – never be established.56 The flexibility of the autonomy concept allows the balancing of the specific negative and positive effects of autonomy in each case. Only the idea is always the same: It is the minimum standard of minority rights. As a rule, the regulations should not be rigid; they should allow for the introduction of changes. Sometimes they are deliberately designed to be established in a gradual process. This gives the parties an opportunity to adapt slowly to the new regime and to gain experience. In this way, the parties concerned can build confidence. According to the principles of the rule of law, autonomy should be established by law and the procedure to amend the laws regulating the autonomy regime should be more complicated than the one used for the amendment of regular laws. 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. Self-government means in the first place political rights and comprises apart from administration questions, like 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 within the State, short of secession. Such a solution expands the set of constructive alternatives considerably. Under these circumstances States are free to acknowledge that a group has a legitimate interest in self-determination.57
Basic idea: subsidiarity
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 entity. 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 or her identity. As a legal principle, subsidiarity has a positive and a negative aspect: As a negative obligation, it restrains the actors on the higher administrative level if a solution can be achieved on a lower community level. This is complemented by the positive duty of the actors on the higher level to assist the community on the lower administrative level if necessary. The principle of subsidiarity is thus based on distributing power and responsibility for public affairs among different communities and to different levels 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.58 Subsidiarity has to be adapted to the circumstances of the case and cannot be defined abstractly.59 It raises always the practical question what forms of self-government are necessary to guarantee comprehensive participation by minorities in public life. Due to its flexibility it is increasingly adopted in national and international affairs and serves as the basis for assigning tasks, which are performed by the international community on the world level, some by regional communities, others by nation-States, and finally some on the local level, through formalised structures.
Right to autonomy?
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, experience has shown that States are not willing 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 a number of OSCE documents has to be emphasised as it shows that autonomy is of increasing importance in enforcing minorities’ and groups’ rights to identity. The concept of autonomy and its status as a principle of international law also get a new impetus by the debates in the UN on the rights of indigenous peoples. This is the first time a group is explicitly given the right to autonomy by a draft of an UN-Declaration.60 This document positions itself in the firmament of international law, human rights and rights of peoples. Operative paragraph 1 of the draft provides: “Indigenous peoples have a right of self-determination, in accordance with international law by virtue of which they may freely determine their political status and institutions and freely pursue their economic, social and cultural development. An integral part of this is the right to autonomy and self-government.” Autonomy is expressed only as one integral part of self-determination, implying that there are other aspects.61 Although the unique character of these claims has to be kept in mind, the debate on rights of indigenous peoples consequently indicates the increasing acceptance of autonomy. But one also has to take into consideration that the community of States hesitates to accept the draft of the declaration on rights of indigenous peoples because of the articles on self-determination and autonomy.62 Another example for those reservations on the side of the States is the Treaty between Hungary and the Slovak Republic on good neighbourly relations and friendly co-operation of 1995. The mentioning of the Council of Europe Parliamentarian Assembly’s Recommendation 1201, which refers to the right to autonomy, led to provisional failure of the ratification of that bilateral treaty by the Slovak Parliament. Ratification became possible only after an interpretative statement of the Slovak Government pointing out, “… that it has never accepted and has not enshrined in the Treaty any formulation that would be based on the recognition of the principle of collective rights for the minorities and that would admit the creation of autonomous structures on an ethnic principle.”63 This example shows that the sensitivity with regard to autonomy of whatever form is still very strong even in member States of the Council of Europe.64
Different conceptions of autonomy
From a legal point of view one can identify four ‘conceptions of this concept’ concerning autonomy regulations: (a) as a right to act upon one’s own discretion in certain matters, (b) as a synonym for independence, (c) as a synonym for 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.65 The term autonomy appears in various legal contexts and is used differently, as the concept of autonomy is not a well-fitted legal concept. As a matter of 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 others. It means that under the principle of territorial integrity, one region is given a special status. The latter comprises the competence of self-government organs to regulate certain matters. 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 secluded 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 members of certain groups. On the other hand, 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 respect human and minority rights. Other crucial prerequisites are 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 to 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 also be necessary.
Deficits of autonomy regulations
Whether a proposal for autonomy will be productive or counterproductive depends on different factors. One has to take into consideration 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 majority-minority relations in that society, aims and involvement of kin-States and other interested outside actors, and a number of other variables.66 The territorial autonomy that may work for the Åland-Islands or the Trentino-Alto Adige region may be wholly impractical or even unnecessary for minorities in other States.67 It is possible to argue that autonomy regulations do not make sense if human rights are respected and the society is organised in a democratic way.68 There is no doubt that the implementation of the whole body of human rights law including effective remedy mechanisms is the foundation of minority protection. If members of the minority population of a State are free of fear and discrimination then there is no reason for engaging in a conflict with the majority. Under these 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.69 Autonomy regimes rest on the assumption that differences enrich more than endanger a society. Cultural survival is defended by counteracting (Western) homogenisation. According to critics, however, this means “… a State composed of segregated autonomy regimes would resemble more a museum of social and cultural antiquities than any human rights ideals.”70 Moreover, a system which recognises minorities is regarded as economically and politically inefficient: The free market is impeded because the minority members are less inclined to leave the group’s territory. Politically, the division of society makes it more difficult to reach consensus. Autonomy might also isolate the minority and alienate the different groups in the society, which could eventually lead to segregation. 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.71 Under certain circumstances these structures may therefore be counterproductive.72 One negative consequence of an autonomy regulation may also be that the government feels less responsible for the political stability, development and prosperity of the autonomous region.73 Some authors criticise 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. It is feared that the concept of all citizens being equal and members of a civic nation might not be compatible with the singling out of specific groups on the basis of their ethnicity.74 Other scholars warn that the ethnic ‘cantonisation’ of a multi-ethnic State or any form of ‘consociational democracy’ is in the long term unhelpful, because it explicitly discriminates between groups on grounds like religion, language, race or national origin. This criticism is a consequence of the fact that power-sharing schemes are concerned with the rights of the group and not with the rights of the individuals.75 Indeed, this danger is inherent in 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 the minority protection system under international law – to transform minority rights into human rights and to make the individual to 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 one line of theorising 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 regulation has to safeguard the rights of other groups as well as of the holders of the territorial autonomy. The power relationship in an autonomous territory is reverse: The previous 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 regulation whatever its nature and an important challenge to the new administration. In the case of Kosovo, for example, the UN General Assembly76 and human rights institutions became increasingly concerned after 1999 – i.e. after the NATO intervention – about the frequent instances of harassment, periodic kidnapping and murder of ethnic Serbian, Roma or other minorities by ethnic Albanian extremists.77 The question arises whether autonomy relates only to a purely domestic and mainly constitutional dimension or also to the international underpinnings of that concept. Especially the uncertainty of the norm of self-determination opens a wide field of problems. Under what circumstances self-determination may create an entitlement to autonomy is still unsolved.78 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 realise their right to self-determination over their affairs, reflects the unclear legal situation. Under those circumstances it is not surprising that there has been a need for political pressure on both the Albanians and the Serbs in Kosovo by the UN to come to an agreement on autonomy regulations.79 But also other States are extremely reluctant to grant any form of self-government to groups and consider decentralisation as a step in the direction of ‘Balkanisation’.80 Delegating State competencies to autonomous bodies of self-government is often suspected to be a step towards secession. There are authors who argue in the light of the post-Soviet experience that secessionism is likely to be significantly higher for minorities equipped with an autonomous region as compared with non-autonomous minorities.81 Due to the fact that autonomy can create institutions with some legitimacy, there is widespread fear of the automatic successive developments: cultural autonomy, administrative autonomy, secession. This explains, to a large extent, 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. It cannot be doubted that autonomy increases group cohesion and the incentives of a group to act. With its political institutions a group increases also its capacity to act. The capacity for collective action is relatively high among those groups that control an autonomous government.82 The possession of State-like institutions has very often the effect of ethnic mobilisation which can challenge the central State’s integrity. Local bodies and parliaments can be used, for example, to pass language laws or to refuse to accept legislation from the central government. If a nationalist leadership in the autonomous structure exists, the whole bureaucracy is in danger of adopting a more nationalist profile.83 It may increase the risk of politicians’ resorting to ethnic mobilisation for career purposes. Elite power may positively correlate to the level of autonomy which means at the end of the day that the elite has an interest in keeping nationalist emotions alive. Due to financial autonomy, which is very often part of the autonomy regulations, the leadership’s dependence upon the central government is less. Last but not least, it is more likely that an autonomous entity – especially if there is a kin State – gets more international support then a minority without that special status. Autonomy may be a possible way to regulate the ethnic affinity of a minority with the kin-State, but this can also increase tensions between the States concerned. This explains why chances for autonomy regulations need to be viewed on a case-by-case basis.84
Conclusions
Although autonomy is a not well-defined concept in international law, although there are no commonly accepted models of autonomy which can be used, and although minority groups or peoples do not have a legal right to it, its efficacy as a means of settling ethnic tensions, of preventing existing States from falling apart and of implementing internationally recognised human and minority rights is becoming ever more apparent. Evaluating the current debate on autonomy, one can say that its 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. However, one aspect holds true for all situations: to make an autonomy regulation a success, it must be backed by the political will of the partners. Often, unfortunately, there is a lack of such political will on the part of the parties to a conflict. Therefore, one has to listen to those voices which argue that the existence of territorial autonomies can increase the risk of conflict. International law must not lead to the destabilisation and disintegration of States. That means, therefore, that one has to see autonomy regulations within the whole framework of human rights, minority rights, self-determination and the sovereignty of States. Any isolated overemphasis of one aspect of international law would lead to instability and is not in accordance with modern international law. 1 John Packer, “The origin and nature of the Lund Recommendations on Effective Participation of National Minorities in Public Life”, in: Helsinki Monitor 11 (2000), p. 31. 2 Cf. Framework Convention for the Protection of National Minorities and Explanatory Report, in: Florence Benoit-Rohmer, The minority question in Europe, Strasbourg 1996, p. 121. 3 Jochen A. Frowein/Roland Bank, “The Participation of Minorities in Decision-Making Processes”, in: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 61 (2001), p. 1. 4 Cf. Stefan Oeter, “Minderheiten im institutionellen Staatsaufbau”, in: Jochen A. Frowein et al. (eds.), Das Minderheitenrecht europäischer Staaten – Teil 2, Berlin 1994, p. 496. 5 Cf. Max van der Stoel, Address to an International Seminar on Legal Aspects of Minority Rights, Zagreb, 4 December 2000. 6 Cf. Berdal Aral, “Turkey’s Kurdish problem from an international legal perspective”, in: David Turton/Julia González (eds.), Ethnic Diversity in Europe: Challenges to the Nation State, Bilbao 2000, pp. 27. 7 Freedom and Democracy Party (ÖZDEP) v. Turkey (No. 23885/94), 8 December 1999, para. 41. 8 Lauri Hannikainen, “The International Legal Basis of the Autonomy and the Swedish Character of the Åland Islands”, in: Lauri Hannikainen/Frank Horn (eds.), Autonomy and Demilitarisation in International Law: The Åland Islands in a Changing Europe, The Hague 1997, p. 58. 9 United Nations Conference on International Organization, Vol. 6, New York 1945, p. 278. 10 Karl Doehring, “Self-Determination”, in: Bruno Simma (ed.), The Charter of the United Nations, A Commentary, Oxford 1994, p. 60. 11 Svante E. Cornell, Autonomy and Conflict, Uppsala 2001, p. 5. 12 Cf. Frank Wooldridge, “Uti possidetis Doctrine”, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. IV, Amsterdam 2000, pp. 1259. 13 Hans-Joachim Heintze, “On the legal understanding of Autonomy”, in: Markku Suksi (ed.), Autonomy: Applications and Implications, The Hague 1998, p. 13. 14 Rudolf Bernhardt, “Federalism and Autonomy”, in: Yoram Dinstein (ed.), Models of Autonomy, Dordrecht 1981, p. 27. 15 Hans-Joachim Heintze, “The Protection of Indigenous Peoples under the ILO Convention 169”, in: Michael Bothe et al. (eds.), Amazonia and Siberia, London 1993, p. 323. 16 Rolf Ekéus, Address to the Conference “Promoting Integration and Development in the Samtskhe-Javakheti Region of Georgia”, Tbilisi 19 November 2002. 17 The fate of the refugees and IDPs exemplifies the weakness of such a de facto autonomy. Cf. Natasha Carver, “Is Iraq/Kurdistan a State such that it can be Said to Operate State Systems and thereby Offer Protection to its ‘Citizens’?”, in: International Journal of Refugee Law 14 (2002), p. 66. 18 Ruth Lapidoth, Autonomy – Flexible Solutions to Ethnic Conflicts, Washington D.C. 1996, p. 175. 19 Donald Sanders, “Is Autonomy a Principle of International Law?”, in: Nordic Journal of International Law 55 (1986), p. 17. 20 Patrick Thornberry, “Introduction: In the Strongroom of Vocabulary”, in: Peter Culper/Steven Wheatley (eds.), Minority Rights in the ‘New’ Europe, The Hague 1999, p. 5. 21 Karl Doehring, supra n. 10, p. 60. 22 T.R. Gurr/J.R. Scaritt, “Minorities Rights at Risk: A Global Survey”, in: Human Rights Quarterly 11 (1989), p. 375. 23 An Agenda forPeace, UN Doc. A/47/277, para. 17. 24 Allen Buchanan, “Federalism, Secession, and the Morality of Inclusion”, in: Arizona Law Review 37 (1995), p. 53. 25 Asbjorn Eide, Minorities in a Decentralized Environment, Background Paper, UNDP Conference “Human Rights for Human Development, Yalta 1998, p. 8. 26 Asbjorn Eide, “In Search of Constructive Alternatives to Secession”, in: Christian Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht 1993, pp. 139. 27 Cf. Human Rights Law Journal 18 (1997), p. 59. 28 The perspective of Gerd Seidel (A New Dimension of the Right to Self-Determination in Kosovo, in: Christian Tomuschat (ed.), Kosovo and the International Community, The Hague 2002, pp. 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. 29 Karen Knop, Diversity and Self-Determination in International Law, Cambridge 2002, p. 82. 30 UN Doc. S/Res. 993 (1995). 31 Frederic L. Kirgis, The Degrees of Self-determination in the United Nations Era, in: American Journal of International Law 88 (1994), p. 310. 32 Bengt Broms, Autonomous Territories, in: Encyclopedia of Public International Law, Vol. 1, Amsterdam 1992, p. 311. 33 Otto Luchterhand, Nationale Minderheiten und Loyalität, Wissenschaft und Politik: Köln 1997, p. 67. 34 Walter Kälin, Federalism and the Resolution of Minority Conflicts, in: Günther Bächler (ed.), Federalism against Ethnicity, Chur 1997, p. 172. 35 Will Kymlicka, Multicultural Citizenship, Oxford 1995, pp. 35. 36 See the text of the Recommendations and the article of John Packer, supra n. 1, pp. 29. The Lund Recommendations are also available online: http://www.osce.org/hcnm/documents/recommendations/lund/index.php3 37 Hans-Joachim Heintze, New Direction in the Approach of the OSCE High Commissioner on National Minorities, in: Netherlands Quarterly of Human Rights 19 (2001) 1, p. 110. 38 Walter Kälin, supra n. 34, p. 173. 39 Wolf Linder, Swiss Democracy, Possible solutions to Conflict in Multicultural Societies, New York 1994, p. 170. 40 According to Madza this has been the case in Nigeria. Cf. Nannguhan Madza, The Judicial System of Nigeria, in: Army Lawyer 20 (1987), p. 20. 41 This is the wording of the findings of the European Commission on Human Rights in the Greek case (12 YB 1, p. 179). 42 Eric Stein, International Integration and Democracy, in: American Journal of International Law 95 (2001), p. 492. 43 Arend Lijphart, Democracy in Plural Societies: A Comparative Exploration, New Haven 1977, p. 36. 44 Kristin Henrard, Devising an Adequate System of Minority Protection, The Hague 2000, p. 314. 45 Cristie L. Ford, In Search of the Quantitative Clear Majority: Democratic Experimentalism and the Quebec Secession Reference, in: Alberta Law Review 39 (2001), p. 541. 46 Steven Wheatley, Minority Rights, Power Sharing and the Modern Democratic State, in: supra n. 20, p. 201. 47 Hurst Hannum, The Limits of Sovereignty and Majority Rule: Minorities, Indigenous Peoples, and the Right to Autonomy, in: Ellen L. Lutz et al. (eds.), New Directions in Human Rights, Philadelphia 1989, p. 14. 48 Thomas D. Musgrave, Self-determination and National Minorities, Oxford 1997, p. 208. 49 Kjell-Åke Nordquist, Autonomy as a Conflict-Solving Mechanism – An Overview, in: Markku Suksi (ed.), Autonomy: Applications and Implications, The Hague 1998, p. 73. 50 Daniel J. Elazar, Constitutionalizing Globalization: The Postmodern Revival of Conferal Arrangements, Lanham 1998, p. 19. 51 Bengt Broms, supra n. 32, p. 311. 52 L. Wildhaber, Sovereignty and International Law, in: R. St. Macdonald/Douglas M. Johnston (eds.), The Structure and Process of International Law, Dordrecht 1985, p. 440. 53 W.M. Reisman, Sovereignty and Human Rights in Contemporary International Law, in: American Journal of International Law 84 (1990), p. 873. 54 Ruth Lapidoth, Autonomy and Sovereignty – Are They Mutually Exclusive?, in: Amos Shapira/Malo Tabory (eds.), New Political Entities in Public and Private International Law, The Hague 1999, p. 14. 55 Allen Buchanan, supra n. 24, p. 54. 56 A. Lijphard, Self-Determination versus Pre-Determination of Ethnic Minorities in Power-sharing Systems, in: Will Kymlinka (ed.), The Rights of Minority Cultures, Oxford 1995, p. 275. 57 Allen Buchanan, supra n. 24, p. 54. 58 Council of Europe Recommendation No. 43 (1998), adopted on 27 May 1998. 59 Daniel J. Elazar, supra n. 50, p. 60. 60 See for a concise history of the Draft Declaration UN-Doc. E/CN E/CN/4/Sub.2/AC.4/1998/1/Add.1. 61 Patrick Thornberry, Indigenous peoples and human rights, Manchester 2002, p. 382. See also the website of the UN High Commission for Human Rights with further information: http://www.unhchr.ch. 62 The USA declared that the autonomy regulations “went too far” and Brazil and Japan expressed concerns about its implications (UN-Doc. E/CN.4/1997/102, paras 325, 334 and 338). 63 See Human Rights Law Journal 16 (1995), p. 96. 64 Heinrich Klebes, The Council of Europe’s Framework Convention for the Protection of National Minorities, in: Human Rights Law Journal 16 (1995), p. 92. 65 Ruth Lapidoth, Autonomy: potential and limitations, in: International Journal of Group Rights 1 (1994), p. 277. 66 David Wippman, The Evolution and Implementation of Minority Rights, in: Fordham Law Review 66 (1997), p. 624. 67 Giorgio 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, pp. 314. 68 See Walter Kälin, supra n. 34, p. 172. 69 Douglas Steiner, Collective Rights, in: Human Rights Quarterly 13 (1991), p. 368. 70 Henry J. Steiner, Ideals and Counter-Ideals in the Struggle Over Autonomy Regimes for Minorities, in: Notre Dame L. Rev. 66 (1991), p. 1552. 71 Michael Brems, Die politische Integration ethnischer Minderheiten, Frankfurt/M. 1995, p. 142. 72 See Cornell, supra n. 11, p. 7. 73 Lise Lyck, Lessons to be learned on autonomy from the Faeroese situation since 1992, in: Nordic Journal of International Law 64 (1995), p. 481. 74 Cornell supra n. 11, p. 228. 75 Wheatley, supra n. 46, p. 201. 76 UN-Doc. 54/183 (29 February 2000). 77 Juliane Kokott, Human Rights Situation in Kosovo 1989-1999, in: Tomuschat, supra n. 28, p. 26. 78 G. Welhenga, The Legitimacy of Minorities’ Claim for Autonomy through the Right to Self-Determination, in: Nordic Journal of International Law 68 (1999), pp. 420. 79 Kokott, supra n. 73, p. 8 80 Lee C. Bucheit, Secession, New Haven 1978, p. 104. 81 Cornell, supra n. 11, p. 19 82 Ted R. Gurr, Peoples versus States: Minorities at Risk in the New Century, Washington, D.C. 2000, p. 19. 83 Cornell, supra n. 11, p. 18. 84 Cf. the examples in Kinga Gál (ed.), Minority Governance in Europe, Series on Ethnopolitics and Minority Issues, Vol. I, Budapest 2002.
