Background
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. 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 initially restricted by the
action of the international community.
The issue is, therefore, the
extent to which the self-government or autonomy in
Kosovo can be viewed as constituting a share of the
self-determination of Yugoslavia. Or, even more
specifically, what kind of a share in the internal
self-determination of Yugoslavia should be accorded to
Kosovo by means of an institutional arrangement that
involves self-government and autonomy and how should
this take place?
This report is rather long
precisely because the combination of
self-determination with constitutional options in the
topic, given to the author by the organisers of the
Conference, and the need to try to reconcile domestic
constitutional solutions with the concept of
self-determination at the international level
introduce elements that complicate the review of the
various issues.
A set of questions have been
presented for further inquiry against the background of
self-determination:
1) what kind of efforts exist
to fashion constitutional arrangements in other
divided polities;
2) what formulas have shown some success at
reconciling a group's self-determination
vis-à-vis a larger entity, that is, what
are the ingredients of success and the reasons for
failure,
3) and under what circumstances?
4) How have international institutions and
arrangements supported or subverted the success of
those models?
5) What are the points of contact between
self-determination on the one hand and
self-government in the form of autonomy or
federalism, on the other? What kind of parallels can
be drawn to the situation in Kosovo?
We will, however, not try to
answer the question whether the Kosovars possess a
right to self-determination, but only concentrate on
the institutional issue. The purpose of this report is
hence to explore the interface between the concept of
self-determination at the level of international law
and the institutional solutions for its realisation
that are available at the level of national
constitutional law.
The report starts with the issue
of self-determination at the level of international law
and proceeds thereafter to conceptualise the
constitutional options for different institutional
arrangements. In the latter context, the position of
three European structures in respect of sub-State
entities is indicated.
Three case studies are used to
explore the contents of sub-State arrangements in
situations, which in one way or another involve the
issue of self-determination. The case of the Åland
Islands is often referred to as a success story in the
field of international conflict resolution and seems to
have produced a stable institutional solution. The case
of Russia and especially the Republic of Tatarstan as a part of the
Russian Federation is an example of a recent attempt to
institutionalise self-determination at the
constitutional level. The Quebec issue has been a
permanent issue in the Canadian constitutional setting
already for several decades and has now produced a
judicial attempt to reconcile the dispute. Finally, a
few remarks will be given concerning the issue of "what
works".
2. Institutional
options for internal self-determination under
international law
Self-determination is a
multi-faceted term. As an element of the international
legal discourse it can be located in a narrow form
already in the Versailles Peace Treaty after
World War I, 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.
A broader notion of
self-determination emerged after World War II, and it
seems as if it would have developed itself 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 under public
international law and especially under human rights
law.
However, self-determination is
rarely a term under national constitutional law. It
seems that in the OSCE area, only the legal order of
Moldova contains an institutional arrangement that
connects autonomy with self-determination. Namely,
Section 1 of the Law on the Special Status of
Gagauzia, an organic law adopted on the basis of
Article 111 of the 1994 Constitution of Moldova,
stipulates that Gagauzia is "an autonomous territorial
entity with a special status as a form of the
self-determination of the Gagauz, forming an integral
part of the Republic of Moldova". The Gagauz, a
population of Turkish origin but with the Orthodox
Christian faith, are hence recognised, at least under
the national legal order of Moldova, as a distinct
people entitled to certain institutional
arrangements.
In the context of international
law, the position of the people is encapsulated in the
concept of self-determination and its two
sub-categories, external and internal
self-determination. The former refers to the existence
of a State as a sovereign subject of public
international law and is widely recognised as a
peremptory norm of international law. The latter is
used to refer to sovereign states in a number of ways,
for instance, in the sense that the population
determines by means of elections the composition of its
government. It may also refer to different autonomy or
sub-state arrangements within the borders of sovereign
states and even to the freedom for a minority from
oppression by the central government.
The doctrine of
self-determination was at least originally used to
undermine the right of acquisition of territories by
means of conquest, which seldom paid any attention to
the interests of the people living in the territory in
question. The idea was first built in to Article 1,
Sub-section 2, of the Charter of the United Nations as
well as in Article 55 of the same Charter and
developed, for instance, by Resolution 1514(XV) of the
United Nations General Assembly in 1960 that includes a
Declaration on the Granting of Independence to Colonial
Countries and Peoples. Sub-section 2 of the Declaration
affirmed that all peoples have the right to
self-determination, on the basis of which they freely
determine their political status and freely pursue
their economic, social and cultural
development.
The forcefulness of the principle
of self-determination was boosted by the inclusion of
self-determination in common Article 1 of the 1966 UN
Covenants on Civil and Political Rights and on
Economic, Social and Cultural Rights. According to that
Article, all peoples, not only those under
colonial domination, have the right of
self-determination, 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.
The realisation of the right of
self-determination has consequences both at the level
of international law and national law.
First, a people in an
established State shall not be subjugated by another
State (non-interference and territorial integrity).
This is actually an understanding of self-determination
that relates to the principle of the sovereignty of
States and protects State sovereignty.
Second, if there is a
subjugated people, it shall have the right to free
itself and become independent. This was especially the
case with colonies after World War II and relates to
de-colonisation.
Third, a people's right to
self-determination can be understood as a right of (a
certain part of) the population to choose the State
under which authority they live. This was a common
concept with respect to territorial changes after World
War I and, it should be stressed, concerned almost
exclusively areas inhabited by a minority population.
In most cases, its purpose was to facilitate the
integration of a minority population in one country
into the population of the kin-State. As sub-categories
of territorial self-determination may be mentioned the
possibilities of the population to attain autonomy, and
perhaps even the option of secession.
Fourth, there seems to
exist a right of a people to create, and perhaps
re-create, their own political system, a right which is
more or less overlapping with the concept of the
pouvoir constituant.
Fifth, self-determination
is in conjunction with Article 25 of the UN Covenant on
Civil and Political Rights often referred to as the
right of the people to participate in government and
determine the content of policies.
The first and the second category
relate to external self-determination, while the fourth
and the fifth category mainly denote internal
self-determination in its various manifestations. The
fourth and the fifth categories also conform with the
main interpretation of the exercise of
self-determination in a post-colonial situation, which
is that the reference to the right of
self-determination of all peoples is a reference to the
total populations of the existing States regardless of
their internal sub-divisions. The third category may be
viewed as a special or perhaps as an intermediate case.
The third, fourth and fifth categories are particularly
relevant for national constitutional law and
necessitate substantial legislative action at that
level.
The UN Declaration on Friendly
Relations of 1970 recalled the existence of the concept
of self-determination and, more importantly, accounted
for the modes of implementing the right of
self-determination by a people. These modes
are:
the establishment of a
sovereign and independent State;
the free association or integration with an
independent State; and
the emergence into any other political status
freely determined by a people.
Hence self-determination is
still, in line with the post-World War I situation, a
determination of sovereignty over people under certain
forms, but the broader legal concept is not only
designed for a minority so that it can choose the
sovereignty under which it will live, but it is
designed so as to make possible the creation of a new
State or sovereign for the population on the one hand
and the integration of the population into an existing
State or sovereign on the other.
In so far as the exercise of
self-determination is a determination of under which
law, that is, under which sovereignty, a people will
live, then the constitutional devolution of legislative
powers to sub-State entities is simultaneously a
limited devolution of both sovereignty and
self-determination to such an entity.
It is submitted here that the
concept of self-determination exists parallel to
sovereignty and that the culmination of both
self-determination, especially in its internal form,
and sovereignty in its internal form, is the exercise
of the highest decision-making authority over a
certain territory.
Hence, just as law-making powers
of autonomies are a devolved part of the internal
sovereignty of the country in question, the law-making
powers of autonomies may constitute a devolved part of
the internal self-determination of a country. Hence
exclusive law-making powers granted to a sub-State
entity can be viewed as constituting a share in the
internal self-determination of that State.
This conclusion would, however,
be valid under international law only in so far as
devolution has concerned peoples or at least certain
distinct groups or populations. It is thus possible
that an autonomy arrangement becomes, if it is accepted
by the population or group in question either through
their representatives or directly through the
referendum or through long-time practical acceptance,
an exponent of their self-determination and wins
legitimacy under international law so as to be
protected under international law. Such protection
under international law would involve a prohibition of
the weakening of the autonomy arrangement against the
will of the population concerned.
International law is, however,
careful in pointing out that the exercise of the right
of self-determination shall not be disruptive of the
territorial integrity of the existing States, and at a
European level, this is sustained by the principles
contained in the various OSCE principles adopted by the
participating States. According to public international
law and under certain conditions provided therein, the
Security Council of the UN is the only body that can
authorise actions by the international community or by
third States that are in breach of the sovereignty of a
State and of its territorial integrity.
The constitutional consequences
of the realisation of these categories of
self-determination are manifold. The establishment of a
sovereign and independent State means that a moment of
exercise of self-determination takes place. This moment
is apparently simultaneously of a pre-constitutional
character and can be described in terms of the
pouvoir constituant, which may contain in itself
the adoption of a constitution for the new State or
result as a consequence in another constitutional
action at which the constitution is adopted either by
means of a referendum or through an elected
assembly.
This parallellism between the
exercise of self-determination to create a new State
and the exercise of the pouvoir constituant is
necessarily not a feature that has drawn much attention
from the international community.
Whereas international law grants
the right of self-determination and is interested in
its realisation, it has had very little to say about
the next step, that is, about what should take place
after the exercise of self-determination.
How should the new State be
organised? Should its method of governance be
democratic? Of course, if the exercise of
self-determination is democratic according to the UN
criteria, it could perhaps be assumed that the emerging
State, too, will be democratic.
However, a more legal link to the
participation of the people in a democratic manner is
established if common Article 1 is read together with
Article 25 in the CCPR, which further on involves at
least the adjacent political rights of expression,
association and assembly as well as equality and
non-discrimination. Hence human rights law can today be
interpreted so as to require the enactment of the first
constitution of a new State with at least these rights.
During the past decade, the
international community has, in fact, been involved in
the State-creation processes in a number of places.
The UN was very active in Namibia
and gave, by means of incorporating the document into a
UN decision, a certain legitimacy to an internal
agreement between the parties in Namibia on
constitutional principles and on the adoption of the
constitution. The elections in 1989 under UN
supervision to the constitutional convention, the
enactment of the Constitution of Namibia on 9 February
1990, and the formal Declaration of Independence on 21
March 1990 illustrate an interesting path of
decision-making that combines the right of
self-determination at the level of international law
and the pouvoir constituant at the national
level.
The international community is
also actively involved in Bosnia and Herzegovina
through the Dayton Agreement, which creates the country
as a federal State with a number of institutions that
have been designed against the background of democratic
concepts. The existence of sub-state entities or units
of governance that have their own and exclusive
legislative powers is one part of the Bosnian
solution.
What would paragraph b) mean in
constitutional terms, that is, what is implied by the
possibility of a people to free association or
integration with an independent State?
Firstly, it would seem to mean
that there exist two different entities, a people that
wants to associate or integrate with an existing State
and a State that is willing to receive such a people.
Secondly, in harmony with
Principles VII-IX of UN General Assembly Resolution
1541(XV) of 1960 on the Principles which should guide
Members in determining whether or not an obligation
exists to transmit the information called for under
Article 73e of the Charter, that is, principles
concerning Non-Self-Governing Territories, it seems
that association with an independent State implies a
confederal or at least a loose federal constitutional
setting in which the associated territory retains the
right to determine its internal constitution without
outside interference, in accordance with due
constitutional processes and the freely expressed
wishes of the people.
Such a people shall continue to
have the freedom to modify the status of that territory
through the expression of their will by democratic
means and through constitutional processes, a freedom
that may actually amount to a right of secession or
lead in the other direction, towards various forms of
closer relationship with the "receiving"
State.
The constitution of the
confederation should probably contain a provision
establishing the right of secession. Integration is
clearly more far-reaching and may even be interpreted
as the creation of a unitary State, because the peoples
of both territories should, according to these
Principles, have equal status and rights of citizenship
and equal guarantees of fundamental rights without any
distinction or discrimination. Both peoples should,
according to the Principles, have equal rights and
opportunities for representation and effective
participation at all levels in the executive,
legislative and judicial organs of government.
Representative government and effective participation
are hence the objectives of international human rights
law.
Between these extremes that could
be chosen by a people in the exercise of their
self-determination, that is, an independent State or a
State in a confederation on the one hand and a unitary
State on the other, there seems to remain a sphere of
constitutional options that are covered by point c) in
the Declaration on Friendly Relations, namely the
emergence into any other political status freely
determined by a people.
This is a position that could
cover all constitutional solutions ranging from a
federation through various kinds of autonomy
arrangements and arrangements of devolution to cultural
autonomy. However, there does not seem to exist much
guidance at the level of international law as to what
kind of institutional arrangements point c) exactly
covers. This is not surprising, because public
international law normally leaves the organisation of
the national administration at the discretion of the
State and establishes in the best of situations only
principles that should be implemented by the national
administrations, which is quite different than the
requirements in human rights law concerning, for
instance, courts of law.
The conclusion is, however, that
public international law can, under the right of
self-determination, tolerate almost any institutional
arrangement at the sub-state level, provided that the
people concerned has determined its status in a free
process.
Concerning the term "autonomy",
which term was used for the sub-state status of Kosovo
under the 1974 Constitution of Yugoslavia until 1989,
we can probably still agree with the view of Hannum
& Lillich, according to which autonomy could be
viewed as "a relative term which describes the extent
or degree of independence of a particular entity,
rather than defining a particular level of independence
which can be designated as reaching the status of
'autonomy'".
However, it should be kept in
mind that no express right to autonomy or to
federalism is created at the level of general
international law.
To the extent the right of
self-determination has any effect at all for the
internal legal orders of States, it may imply that a
sub-state arrangement, for instance, an autonomy, is
protected under that right, provided that the
beneficiary of the arrangement is a distinct people.
This may be the case, for instance, concerning the
Gagauz in Moldova, supra.
In other respects, the
institutional solution is entirely in the hands of the
constitution-maker of the State. This does not preclude
the possibility that a State agrees in a special treaty
to create a sub-State entity. Such a deal was stricken
between Italy and Austria in Paris Peace Treaty of
1946, in which Italy agreed to "grant autonomy coupled
with measures for the cultural identity of the
German-speaking minority" for South Tyrol.
However, the Kosovars have been
denied both 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 re-emerge as a part of the Federal
Republic of Yugoslavia.
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). 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".
A position as an international
protectorate reminiscent of the position of the Free
City of Danzig on the basis of Articles 100-108 of the
Versailles Peace Treaty between the Allied and
Associated Powers and Germany should thus be excluded,
so also a situation which the Saar had after World War
I and World War II. Hence the discussion concerns
institutional solutions within the Yugoslav
constitutional setting to restore representative
government and effective participation for the
Kosovars.
What could be a somewhat
comparable situation is the position of the Memel
Territories in Lithuania after World War I. Under
Article 99 of the Versailles Peace Treaty of 1919,
Germany ceded Memel to the Allied Powers and promised
to accept any settlement concerning the status of
Memel. The territory, inhabited by Germans, Jews and
Lithuanians, was put under the administration of France
and was some kind of a protectorate of the League of
Nations, but Lithuanian troops occupied the area in
1923. A council of ambassadors of the Allied designed a
new status for the territory which made Memel an
autonomous region within Lithuania with its own
representative body that possessed some legislative
powers. In 1938, the National Socialists won the
elections in Memel, and in 1939 Germany demanded the
return of Memel to Germany, with which demand Lithuania
complied. Here, the international community had an
active role under the established rules of
international co-operation, but the promising
development of the autonomy arrangement was interrupted
by World War II.
Conceptualisation of
the constitutional options (unitary State - autonomy -
federation) and the relationship between the European
institutions (OSCE, CoE, EU) and sub-State
entities
The unitary State has long been
regarded as the principal form of State. A unitary
State is a State in which all legislative powers are
vested in one legislature at the national level and in
which no delegation of exclusive legislative powers or
even significant devolution of specifically delineated
regulative powers exist. In Europe, for instance,
Sweden could be an example of a pure unitary
State.
However, at the moment, more than
half of the countries in Europe are not totally unitary
States, because they display features of devolution of
regulative powers or of delegation of legislative
powers either to self-governing regions or autonomous
territories (e.g., Great Britain and Italy) and because
a number of them are federal States (e.g., Germany and
Austria). Hence the polities are much more varied than
one might think at a quick glance and provide evidence
of human inventiveness through the different forms of
sub-state entities.
A core definition of a federation
can contain two different elements.
Firstly, the federal legislative
body is organised so as to provide for equal
representation of the constituent states of the
federation in one chamber of the legislature, while the
other chamber is normally directly elected by the
inhabitants of the constituent states in a way which
guarantees the proportional representation of the
population in the federal legislature. Hence the "upper
house" displays a symmetry by granting an equal number
of seats to all constituent states, while seats in the
"lower house" are distributed according to the number
of inhabitants in the several states.
Secondly, in a federation, the
federal legislature and the central authorities have
enumerated powers, which means that they are in the
possession of special competencies or certain specified
functions that, at least in theory, have been
transferred to the federation by the constituent
states. The latter, in turn, remain in the possession
of the residual competencies, which allows the
characterisation of the basis of their powers as a
general competence.
Hence the constituent states are
empowered to deal with all the matters which are not
explicitly reserved to the federal level. The idea
underpinning the distribution of powers between the
federal level and the state level and actually the
whole definition of the federation is that the
constituent states have retained at least some traces
of their original sovereignty, albeit in a way
profoundly circumscribed by the federation.
For instance, the amendment of
the federal constitution would, as a general rule,
require the participation and consent of the
constituent states. (In a confederation, the
constituent States would retain a much more substantial
part of their sovereignty.) In Europe, the following
countries can be described as federations: Germany,
Switzerland, and Austria as well as Belgium and Russia,
which, however, display certain features that modify
their federalism. Nevertheless, federalism is normally
a fairly symmetrical mode of organisation.
There does not exist any solid
theory about autonomy or devolution, perhaps because
autonomy arrangements are often very pragmatic ac
hoc solutions that escape generalisations. However,
if a provisional definition of autonomy were to be
developed, the relationships between the central level
and the sub-State level would be turned upside down.
Firstly, the legislative body of
the State would normally not consist of any organ,
which would incorporate the official representation of
the sub-State entity, although the inhabitants of an
autonomous region might be granted a certain number of
seats in the legislative body filled by means of
elections in that particular constituency. Hence at the
same time as the inhabitants of the autonomous
territory have the right to elect their own
self-governing bodies they participate in national
elections on an equal basis with the other citizens of
the State. This seems to be the idea incorporated in
the Rambouillet Accords.
Secondly, as concerns the powers
held by the autonomous sub-State entity, the
legislative powers would be enumerated and specified so
that a special competence is created for the sub-State
entity in certain fields, while the central government
and the legislature of the State would at least in
principle retain the general legislative competence or
the residual powers. The idea underpinning this
characterisation is that the sub-State entities do not
possess any original sovereignty: they are
constitutionally created and defined entities entrusted
with powers transferred to them by the central state.
Such autonomies would normally not have any great
influence in, for instance, amendments to the national
constitution, at least not in cases that do not affect
the autonomy arrangement.
The issue of legislative powers
is crucial for the understanding of autonomies and
their functioning. These powers constitute, at the
level of the State, the core of the internal
sovereignty of the State. Making laws is equal to the
effective exercise of power over the territory of a
State. In states where autonomies exist, a share of
that internal sovereignty may have been devolved under
the constitution of the country in such a way that both
the legislature of the State and the legislature of the
autonomous entity have exclusive legislative powers
even in relation to each other, although they may also
have concurring jurisdictions.
In Europe, at least the following
countries create varying degrees of autonomy in their
legal order: Finland, Denmark, Great Britain, France,
Spain, Portugal, Italy, Ukraine and Moldova. Not all of
these entities are created as exclusive legislative
jurisdictions, but remain as jurisdictions with a
certain measure of regulative powers.
At least in Spain, where by the
way Article 2 of the Constitution formulates a right to
autonomy, the "autonomisation" of the country is so
far-reaching that it approaches a federative
arrangement.
Autonomy arrangements introduce
an asymmetrical element in the governance of the
country. This is the case, for instance, in respect of
the United Kingdom, where three distinct territories,
Scotland, Wales and Northern Ireland, display a varying
degree of devolution organised in form of
self-government. The Northern Ireland arrangement,
agreed upon in April 1998 between the parties to the
conflict, there among the United Kingdom and the
Republic of Ireland, was brought into force through an
Act of the Parliament of England on 2 December 1999.
The arrangement is actually to a certain extent a
re-introduction of self-government of the kind that
existed between 1921 and 1972.
The significant feature of the
British devolution is, however, that the law-making
powers vested in the popularly elected assemblies of
Scotland and Northern Ireland should conform to the
Acts of the English Parliament according to the
principle of the sovereignty of Parliament. Hence, in
the absence of a formal written constitution, there
exist no such exclusive legislative powers in the UK,
which would be independent of the legislative powers of
the Parliament of England. It should nevertheless be
remembered that at least some of the States that
contain autonomy arrangements define themselves as
unitary States.
On the basis of Article I.5(a) of
the Rambouillet Accords, the Legislative Assembly of
Kosovo seems to have such enumerated legislative
powers. However, under Articles I.3 and I.4, the powers
of the Federal Republic of Yugoslavia and the Republic
of Serbia are enumerated, too, which does not conform
to our provisional theory of autonomy (see above).
Hence it seems that there will exist three different
legislative powers in Yugoslavia which all have
exclusive law-making powers in relation to each other
in areas that are enumerated in the Rambouillet
Accords.
Jurisdiction of a legislative or
a regulative kind has, as indicated above, been created
in sub-State entities in many countries, and the
results of such activities have produced a number of
federal states and states with autonomies. The powers
accorded to the sub-State entities are of a varying
character and vary from case to case according to the
specificities of the aims to be achieved displayed by
the arrangement. The various sub-State arrangements do
not seem to follow any general pattern. For instance,
the minority protection component is not present in all
the sub-State arrangements, not even in all of the
autonomy arrangements. The variation in the creation of
the arrangements is particularly interesting in respect
to the norm-hierarchical level at which any sub-State
arrangement is established. The combined variation in
the powers of the sub-State entities and the level of
legislation is illustrated in Table 1,
infra.
Table 1.: The
constitutional variations sub-State entities in
Europe
[TABLE 1 ABOUT HERE]
It is possible to conclude on the
basis of the dimensions in the Table that all
constituent states in the European federations can be
placed in Section I of the Table. Furthermore, it is
possible to conclude that at least those autonomies
that have been placed in Section I are autonomies
proper. These entities are organised on the basis of
the national constitutions of their respective
"host-countries", and special jurisdictions involving
exclusive law-making powers have been created for them
against the background of the national constitutions.
The material fields of activity they possess vary a
lot, but because they are entitled to make laws of
their own, they exist within the ambit of Article 3 of
the First Protocol to the European Convention on Human
Rights (free elections at reasonable intervals by
secret ballot). They may also, on the basis of their
legislative powers, be able to enact such restrictions
to the rights and freedoms guaranteed by the ECHR which
are allowed by the various Articles of the European
Convention.
Entities in Section II of the
Table lack the formal constitutional delegation of
law-making powers, but they nevertheless make their own
laws, in this case on the basis of ordinary legislation
adopted by the parliament of the State. From a formal
point of view it could perhaps be possible to exclude
them from autonomies proper, but the powers they
exercise in spite of this make them, for all practical
purposes, autonomies.
Although the entities in Section
III have a certain constitutional basis, it would,
however, seem as if their powers were of a
non-legislative kind, limited to regulative or
administrative jurisdiction and subordinated to
ordinary legislative powers of the country concerned.
Here the use of the term "autonomy" could already be
qualified. Section IV represents cases, which perhaps
should not be discussed in terms of autonomy, but
rather as special administrative regions.
It is difficult, on the basis of
the 1974 Constitution of the Socialist Federal Republic
of Yugoslavia, to fit in the "revoked" Autonomous
Province of Kosovo in the Table. On the basis of
Article 1 of that Constitution, the State was a
community of voluntarily united nations and of their
Socialist Republics and of the Socialist Autonomous
Provinces of Vojvodina and Kosovo.
Kosovo was, under that Article,
regarded a constituent part of the Socialist Republic
of Serbia. Article 4 of that Constitution tried to
explain what an Autonomous Province is: it is an
autonomous socialist self-managing democratic
socio-political community based on the power of and
self-management by the working class and all working
people, in which the working people, nations and
nationalities realise their sovereign rights, and when
so specified by the Constitution of the Socialist
Republic of Serbia in the common interests of the
working people, nations and nationalities of that
Republic as a whole, they do so also within the
Republic.
Hence the details of the autonomy
of Kosovo were dependent on the Constitution of Serbia.
However, the level of regulation of the position of
Kosovo was clearly constitutional. At the same time,
the powers accorded to Kosovo were probably (and please
note this is pure speculation) such that they should
not be exercised against the constitutions of
Yugoslavia and Serbia or even the laws of Yugoslavia
and Serbia. Therefore, the powers of Kosovo were, until
their revocation in 1989, probably mainly of a
regulative kind. This kind of a position for the powers
of Kosovo would place Kosovo (1974-1989) in Section III
of the Table.
The reference to "substantial
self-government" and to "substantial autonomy and
self-government" for Kosovo in the S.C. Resolution
1244(1999) should probably be interpreted so as to mean
the creation of an institutional solution in harmony
with the principles of Section I of the Table. The
Rambouillet Accords would meet this wish. However,
Article 6 of the 1992 Constitution of the Federal
Republic of Yugoslavia leaves it to the competence of a
member republic, that is, Serbia or Montenegro, to
organise its government and local self-government under
its own constitution. Therefore, the institutional
solution created by the Rambouillet Accords should
actually, at least under the current Yugoslav
Constitution, be inserted in the Constitution of
Serbia, which in turn would make Kosovo a sub-sub-State
entity.
The position of the different
European structures in respect of sub-State entities
varies considerably due to the normative aims the
different structures have. Actually, only the OSCE is
directly concerned with institutional arrangements for
divided polities, mainly because of its
conflict-prevention function. It is, however, not to be
excluded that the other two structures, the Council of
Europe and the European Union, could have an impact on
divided polities through their mechanisms.
It was already concluded above,
that the entities in Section I of the Table are
relevant at least under Article 3 of the First Protocol
to the ECHR. Hence the European human rights system
probably does not protect such entities, but at least
covers them.
Moreover, the Council of Europe
seems to treat all these entities as possible
expressions of self-government of a higher order, as is
evident, for instance, on the basis of the Draft
European Charter of Regional Self-Government, which has
been drawn up under the auspices of the Congress of the
Local and Regional Authorities in Europe. What
self-government means, albeit at a local government
level, within the framework of the Council of Europe is
perhaps best expounded by the European Charter of Local
Self-Government of 1985.
According to Article 3.1. of the
Charter, local self-government denotes the right and
the ability of local authorities, within the limits of
the law, to regulate and manage a substantial share of
public affairs under their own responsibility and in
the interests of the local population. In this context,
self-government implies, inter alia, elected
assemblies, meaningful powers, safeguarded territorial
boundaries of local government, and adequate financial
resources of which at least a part derive from locally
determined taxes and charges. The self-government
intended for Kosovo under the Rambouillet Accords seems
to meet the requirements of the European understanding
of self-government.
The OSCE principles adopted at
the Human Dimension Meeting in Copenhagen in 1990
connect autonomy and minority protection 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".
This connection has been further
elaborated by the OSCE, for instance, in Ukraine, where
the OSCE has been intensively involved in the
negotiations leading up to the establishment of the
Crimean Autonomous Republic, and in the 1999 Lund
Recommendations on the Effective Participation of
National Minorities in Public Life, a work commissioned
by the OSCE High Commissioner on National Minorities.
Hence it could be said that the OSCE facilitates the
use of all kinds of pragmatic solutions to issues
involving minority populations within the borders of
the existing States. The OSCE's support for pragmatic
and ad hoc institutional solutions can probably
produce sub-State entities across all Sections in the
above Table.
The position of sub-State
entities in the European Union may be problematic in
many ways, but especially in respect of their powers.
Because the division of competencies in the Union is
predominantly a matter between the Union and the Member
States, the territorial sub-divisions of a Member State
do not play any role. In fact, many of the sub-State
entities, for instance, the Åland Islands, have
experienced a decrease in their competencies due to the
exclusive powers of the Union.
Therefore the ever closer union
between the Member States of the Union may, in fact,
lead to problems concerning the sub-State entities and
can even threaten their meaningful existence, at least
in so far as the competencies of the Union overlap with
the competencies of the sub-State entities. Anyway,
autonomies created in the legal orders of the Member
States of the European Union would normally qualify as
regions and be entitled to seats in the Committee of
Regions under Article 263 ECT. Hence at the same time
as the European Union may cut down the competencies of
the sub-State entities, it incorporates them in a
formal body of the EC structures and gives them an
advisory role. However, autonomies may also be treated
as special regions of some kind under EC law, as is the
case, for instance, with the Åland Islands that
were granted certain exceptions from the regular
application of EC rules at the point when Finland
joined the European Union.
4. A case from the
1920s: the Åland Islands
When discussing territorial
autonomy and minority protection, the model of the
Åland Islands is often brought to the fore, and
not without good reason. The Åland Islands may be
presented as a case in which autonomy helped to solve a
conflict situation. It is said that the Åland
Islands today constitute the oldest autonomy in the
world. The autonomy of this area has its background in
the dispute about the national affiliation of the
inhabitants of the Åland Islands.
However, before analysing the
Åland arrangement, some initial parameters should
be set within which the situation before 1920 is
recapitulated. The purpose of this is to indicate that
solutions of this kind may not be universally relevant
and applicable, but are tied to the particular
circumstances surrounding the case in question.
Therefore, instead of speaking about a model of
autonomy one should probably mention the Åland
Islands as a laboratory of autonomy.
Firstly, Finland and Sweden
formed a single kingdom until 1809, when Finland was
conquered by Russia and taken into the Russian Empire
as an autonomous Grand Duchy, leaving a substantial
Swedish-speaking population in Finland in the coastal
areas of Southern, South-Western (including the
Åland Islands), and Western Finland. Some
Swedish-speakers may have retained a longing for a
reunification with Sweden until the 20th century.
Secondly, the Åland Islands are geographically
near to Stockholm, the Swedish capital. The Islands'
strategic importance derived from this close proximity.
Moreover, from the Åland Islands, it was possible
to control large areas of the Baltic Sea.
Thirdly, a treaty under
international law was concluded in 1856 between Russia,
Great Britain and France on the demilitarisation of the
Åland Islands leading to a distinct status of this
territory in respect of military installations.
Fourthly, it deserves to be repeated that Finland was
an autonomous Grand Duchy of the Russian Empire.
This arrangement was created in
1809 and codified in Article 2 of the 1906 Constitution
of Russia, which concluded that "(t)he Grand Duchy of
Finland, while it constitutes an indivisible part of
the Russian State, is governed in its domestic affairs
by special institutions on the basis of a special
legislation". Apart from the plausible attempt to
anticipate the 1921 decision of the League of Nations
(see below) and the possible "model-effect" of the
creation in 1919 of the Free City of Danzig under the
Treaty of Versailles, the then recent Finnish
experience as an entity with (relative) autonomy may be
cited as an important factor conducive to the
recognition of the Ålandic autonomy in 1920 and in
1922.
Fifthly, Finnish independence at
the end of 1917 resulted in the separation of Finland
from the multiethnic Russian Empire and in the creation
of Finland as an independent state with one dominant
linguistic group, parts of which aimed at the creation
of a nation state (in the Form of Government
(Constitution) Act of 1919, however, a nation with two
equal languages, Finnish and Swedish). This development
was probably perceived quite negatively on the
Åland Islands. Sixthly, during the First World
War, Russia deployed troops on the Islands and built
military installations. Moreover, the Finnish Civil War
at the beginning of 1918 resulted in the presence of
military forces of the Whites, as well as units of the
German and Swedish Army. The demilitarisation of the
Åland Islands was in danger.
Seventhly, before the creation of
Ålandic autonomy, the population of the Åland
Islands was hardly viewed as a separate linguistic
minority, but constituted a part of the
Swedish-language population of Finland. Nevertheless,
because of its geographically separated position (the
area was quite difficult to reach before 20th century
methods of communication were in place) the population
of the Åland Islands developed the characteristics
of a community and displayed distinct political
aspirations (see below).
However, whether the Islanders
constitute a separate minority may be debatable.
Currently the inhabitants of the Åland Islands
display a strong "Ålandic" national identity in
comparison with the Swedish-speaking population in
Finland, which in general strongly identifies itself
with Finland. Of a total population of 5.1 million
inhabitants in Finland, some 300,000 (5.8 per cent)
speak Swedish. The population of the Åland Islands
amounts to more than 26,000 inhabitants, of which
25,100 are Swedish-speaking and 1,200 Finnish-speaking.
Eightly, when the Form of Government (Constitution) Act
was enacted in 1919, provisions providing language
rights and facilitating even general systems of
self-government of a higher order were incorporated
into the Constitution.
The former were realized in the
form of linguistic guarantees on an equal footing for
both language groups, but the latter never led to
anything concrete (with the exception of a committee
and its subsequent "emergency drafting" of the
Ålandic autonomy legislation, see below). It
should be noted that the Swedish-language population in
Finland is not considered as a minority in Finnish law,
but a population which has the same linguistic rights
as the Finnish-speaking population. The Language Act
(Statutes of Finland, SOF 148/22) that implements
Sections 14 and 50(3) of the Form of Government
(Constitution) Act combines the personal principle (the
right to use ones own language in his or her case) with
the territorial principle, which determines the
linguistic character municipalities and administrative
subdivisions as unilingually Finnish-speaking,
unilingually Swedish-speaking or bilingual (with either
Finnish or Swedish as the dominant
language).
On the basis of these background
elements, it is possible to conclude that the
Ålandic autonomy arrangement is very much tied
both to international and national politics and to
international and national law.
But why is the Ålandic
solution so attractive? In the contemporary world, its
appeal seems to depend on its close relationship with
the international law concept of self-determination.
This concept, again, has various interrelated
dimensions, some of which are relevant for areas which
form parts of a state. In this respect, people's right
to self-determination can be understood, inter
alia, as a right of (a certain part of) the
population to choose the state under whose authority
they want to live (see above).
This quite narrow version of the
concept of self-determination had a tremendous appeal
on the Åland Islands at the end of the 1910s and
the beginning of the 1920s and resulted, inter
alia, in the organization of two petition campaigns
on the Islands advocating secession from Finland and
accession to Sweden.
However, the narrow principle of
self-determination was not really applicable on the
Åland Islands situation: there was no minority
population which, on the basis of a peace treaty, was
given the opportunity to exercise its
self-determination with a view to choosing national
affiliation. What the League of Nations actually did
was that it applied certain conflict resolution
techniques on the dispute between Finland and Sweden
and confirmed the existence of an autonomy that had
been created by Finnish law already a year earlier: the
Council of the League of Nations replaced the
population as the decision-making organ and the
Covenant of the League of Nations with its dispute
settlement mechanisms replaced the peace treaties.
However, the end result was
probably not given, but the result could perhaps have
been the same as with the exercises of
self-determination after World War I: the separation of
the Åland Islands from Finland and the integration
of the Islands with Sweden. After the consolidation of
the position of the Åland Islands as an autonomous
part of Finland, however, this issue has, with certain
smaller exceptions of a mainly internal character,
ceased to be contentious.
Already in August 1917, an
unofficial assembly of the inhabitants of the
Åland Islands had proposed that the area would
secede from Finland and join Sweden. Moreover, the
Åland Islands question involves two instances
which are often termed unofficial referendums or
opinion polls. Soon after the Finnish Declaration of
Independence, at the end of December 1917, a petition
campaign was undertaken on the Åland Islands to
establish and support the wishes of the inhabitants to
secede from Finland and to join Sweden. Of the
approximately 21,000 inhabitants of the Islands,
approximately 12,500 persons had the right to vote, and
about 8,000 of these were presented with a petition on
the issue. 7,135 persons signed the petition addressed
to "the king and people of Sweden" asking for measures
to be undertaken leading to annexation by Sweden. A
majority of persons with the right to vote can thus be
said to have been in favour of union with
Sweden.
Soon thereafter, a dispute about
the Islands arose between Finland and Sweden. Although
Sweden was not a party to the 1856 treaty establishing
the Åland Islands as a demilitarized area, the
matter was laid before the Paris Peace Conference in
1919 in order to make it possible to follow a similar
path as Denmark had followed with regard to Schleswig.
This plan did not succeed, although it was supported by
another petition campaign, which was completed on 29
June 1919.
This second petition was signed
by 9,735 persons who supported union with Sweden, while
461 persons refused to sign the petition. In 1920, the
League of Nations took the matter up on proposal by
Great Britain, which was a party to the 1856 treaty. At
this point, an Act on the Self-Government of the
Åland Islands (SOF 124/20) was enacted by the
Parliament of Finland, probably at least partly as a
preemptive measure, the preparations for which had
begun already in 1919.
With this Act, the province of
the Åland Islands gained its own Legislative
Assembly with a general competence in fields that were
not included in the enumeration of exclusive
legislative powers of the Finnish Parliament. Hence the
original grant of autonomy was more in conformity with
the theory about federal organisation than with the
provisional definition of the creation of autonomies in
unitary States. However, because the inhabitants of the
Åland Islands felt that the self-government
legislation had been imposed upon them, the Assembly
did not convene until 1922.
The position of the Provincial
Governor as the representative of the President of
Finland caused dissatisfaction and distrust with the
arrangement. According to this Act on Self-Government,
the President had, upon receiving an opinion from the
Supreme Court, an absolute veto over the legislative
enactments of the Legislative Assembly if the
Ålandic Act violated the exclusive legislative
powers of the State, or if the Act was in conflict with
the good of the Republic. Courts of law of the State
were in charge of interpreting the Ålandic Acts,
too.
At this point, the Åland
Islands also received the right to use the proceeds of
certain taxes and to levy some additional taxes and
charges connected to these general State taxes. Many of
these taxation powers were subsequently diminished and
faded away altogether by the 1950s because the State
abolished the relevant categories of taxes when
restructuring its general taxation. However, at the
same time the Åland Islands became entitled to a
certain economic equalisation by the State determined
by a delegation, if the taxes for the self-government
functions rose above the average for corresponding
functions elsewhere in Finland.
The Act on Self-Government
included no specific right of domicile. Nevertheless,
the inhabitants of the Åland Islands, that is,
persons who were registered as residents of the
Ålandic municipalities under a regulation that
covered all Finland, were exempted from military
service, a provision which has an obvious connection to
the demilitarised status of the Islands. The Act
contained provisions concerning the language of State
officials in the Åland Islands, which was to be
Swedish. The Supreme Court of Finland was given the
competence to rule on disputes that may arise
concerning the powers of the Governor, the Legislative
Assembly, and the Government of the Åland Islands
under the Act on Self-Government.
The Act on Self-Government was
enacted on the basis of Section 60 of the 1906 Diet
(Constitution) Act as an Act of Exception, following
the amendment formula for the Constitution. This method
of enactment constituted the Ålandic autonomy
arrangement as an exception to the constitutional
structure of administration, but, however, without as
such making the Act on Self-Government a part of the
formal Constitution of Finland or without declaring the
Act a constitutional law. The special features of this
legislative measure were included in Section 36 of the
Act, according to which the Act on Self-Government
could be amended only in the way established for the
amendment of the Constitution and with the consent of
the Legislative Assembly of the Åland
Islands.
When the matter was dealt with by
the League of Nations, Sweden requested in her
submission to the Council of the League that the matter
be decided by the inhabitants of the Åland Islands
in a plebiscite. Although plebiscites were fashionable
in such questions after the First World War, no popular
vote was ever organized, but the investigation of the
matter was carried out by two commissions.
The first one, the so-called
Commission of Jurists, concluded that the Åland
Islands issue fell within the jurisdiction of the
League of Nations, and the second one, the so-called
Commission of Rapporteurs, maintained that the
Åland Islands should remain under the sovereignty
of Finland. On 24 June 1921, the League of Nations
decided the territorial dispute in favour of Finland on
condition that guarantees aiming, inter alia, at
the Islanders' prosperity and happiness, would be
established and that measures would be taken to
demilitarise and neutralise the Islands.
The guarantees relating to the
inhabitants were to be included in the Act on
Self-Government and would deal with the maintenance of
the Swedish language as the language of school
instruction, the maintenance of real estate in the
possession of the inhabitants, the establishment under
reasonable terms of the acquisition of the right to
vote of persons who move to the Islands, and the
appointment of a person as Governor who enjoys the
confidence of the inhabitants. The final solution
agreed upon by Finland and Sweden and adopted by the
League of Nations confirmed the existing autonomy of
the Åland Islands and supplemented it with some
additional features (for the text of the Agreement in
the French language, see Appendix I) mentioned
above.
Although this so-called
Åland Agreement was not a treaty under public
international law, in Finland it led to the enactment
of the Act containing Certain Provisions concerning the
Inhabitants of the Åland Islands (SOF 189/22) or
the so-called Guaranty Act in 1922. This Act was an
amendment of and an addition to the Self-Government Act
of 1920, enacted in the order prescribed for
constitutional amendments. It regulated the adoption of
the Governor by the President with the agreement of the
Chairman of the Legislative Assembly (Section 1) and
stipulated that the Legislative Assembly and the
Ålandic municipalities are not obliged to maintain
or support other schools than those in which Swedish is
the language of instruction (Section 2).
Moreover, in State schools
located in the Åland Islands, the Swedish language
would be the language of instruction. Finally, the
Finnish language was not to be taught in primary
schools maintained or supported by the State or a
municipality unless the municipality in question
consented to this. According to Section 3 of the
Guaranty Act, a citizen of Finland who moves to the
Åland Islands acquires there the municipal and
Ålandic right to vote only after he or she has
been legally resident in the Åland Islands for
five years.
Finally, under Section 5, a
restrictive regulation concerning property was
introduced: if a piece of real property had been sold
to somebody whose legal residence was not in the
Åland Islands, the authorities of the Åland
Islands, the municipality within which the property was
situated, or a private person legally resident in the
Åland Islands had the right to redeem the piece of
property at a certain fair price. None of these laws
created any right of domicile, limited to the
inhabitants of the Åland Islands, but the
regulations concerning the right to vote contained the
basis for such a concept.
The League of Nations settlement
gave the rights granted under this autonomy arrangement
a collective character. Section 6 of the Guaranty Act
of 1922, supplementing the first Autonomy Act of 1920,
contained provisions for a situation where the
Legislative Assembly of the Åland Islands might
present complaints or notes about the implementation of
the Self-Government Act and Guaranty Act. In such a
situation, the Government of Finland would add its own
observations to the complaint or note and pass on the
issue to the Council of the League of Nations so that
the Council could supervise the implementation of the
provisions and, in case the matter is judicial, obtain
an opinion from the Permanent Court of International
Justice.
This procedure became a desuetudo
when the League of Nations system collapsed, but it was
eliminated from Finnish legislation only in 1951, when
the new Autonomy Act repealed the Acts of 1922 and
1920. However, despite the disappearance of the
mechanism of supervision, the autonomy arrangement
itself has been regarded as one of customary law, while
at least the demilitarisation and neutralisation may
perhaps be regarded as a so-called objective regime
under international law.
The 1951 Autonomy Act (SOF
670/51) confirmed the basic elements of the arrangement
of the 1920s, but created at the same time a
specific right of domicile, which defined the
group of persons who were to be considered
beneficiaries of the special features of autonomy, that
is, the right to vote and stand as candidate in
municipal and Ålandic elections, acquisition and
possession of real estate, the right to carry out
so-called regulated branches of trade, and exemption
from military service.
The definition of the right of
domicile created at this point a distinction between
the inhabitants of the Åland Islands and those of
mainland Finland that was more protective of the former
than under the previous legislation, while the
definition may have had a discouraging effect on
persons from the mainland as concerns their intention
to move to the Åland Islands.
This Autonomy Act made the
countours of autonomy more specific and provided more
detailed regulations concerning the powers and
functioning of autonomy. At this point, an enumerated
list replaced the more general clause in defining the
competences of the Legislative Assembly.
From this point on, the division
of powers between the Parliament of Finland and the
Legislative Assembly of the Åland Islands
conformed better with our provisional theory about
autonomy. As concerns the administrative tasks and
possible conflicts between the administrative
authorities of the State and the Åland Islands in
respect of these, the Supreme Court was given the
competence to rule on them upon an opinion of the
Åland Delegation. Within the framework of the
legislative powers, the boundaries of the law-making
capacity of the Legislative Assembly could be
efficiently supervised by the President of the
Republic, who could veto an Ålandic Act upon
receiving an opinion from the Supreme Court. However,
the authorities of the Åland Islands received no
corresponding remedy for situations in which the
legislature of the Republic of Finland interfered with
the legislative powers of the Legislative Assembly.
This asymmetry is one element distinguishing the
Ålandic arrangement in Finland from a federative
arrangement.
The current Autonomy Act was
enacted in 1991. The 1991 Autonomy Act strengthened the
self-government of the Åland Islands and
restricted the State's supervision. This was carried
out especially by expanding the legislative competences
of the Åland Islands (for instance, regulations
concerning use of the flag of the Åland Islands,
leasing, historical sites, social care, sub-soil
resources (in respect of which there is a divided
competence with the State), the sale of alcoholic
beverages, archives, postal affairs, radio and
telecommunications) as well as giving the Åland
Islands more administrative powers (for the legislative
powers of the Åland Islands and the State of
Finland, see Appendix II).
A more detailed regulation
concerning the language of instruction was included in
the Act to provide more protection of the cultural
identity of the inhabitants of the Åland Islands.
Moreover, the acquisition of a certain proficiency in
the Swedish language as a condition for the right of
domicile was added to the Act. The special rights tied
to the possession of the right of domicile were kept
more or less in the same form as in the 1951 Autonomy
Act, with the exception that 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.
The monopoly of the Swedish
language on the Åland Islands may, however, create
a so-called 'minority in minority' problem in respect
of Finnish-speaking persons (about 1100 or 4.5 per cent
of the population) residing in the Åland Islands.
Although Finnish-speakers could, if they wanted, create
a private school on the Åland Islands, the
language provisions may contain conflicts with the
provisions of the 1960 UNESCO Convention Against
Discrimination in Education.
The Belgian Linguistics
Case of the European Court of Human Rights would,
in turn, seem to indicate that there is no such
discrimination against Finnish-speaking pupils in the
Åland Islands that would be prohibited under the
European Convention on Human Rights: there would seem
to exist "legitimate and objective grounds to keep the
schools of the Åland Islands monolingually
Swedish" at the same time as the present system would
not seem to "involve disproportionality between the
means employed and the aim sought".
There has been a certain
discussion concerning the relationship between the
Ålandic arrangement and the various human rights
conventions binding on Finland. It has been suggested
that the 1921 decision of the League of Nations could
be considered a lex specialis, but it would seem
as if most legal experts gave precedence to Finland's
obligations under human rights conventions according to
the principle of lex posterior.
The position of the Åland
Islands was and is special at the level of the formal
Constitution. In the originally multi-documentary
Constitution of Finland consisting of the Form of
Government (Constitution) Act, the Parliament
(Constitution) Act, and two constitutional acts
pertaining to the form and procedure of the Court of
the Realm, which all have been enacted in accordance
with the qualified procedure prescribed for legislation
at the constitutional level and which all define
themselves as constitutional laws, the Åland
Islands used to be referred to only in Section 33 of
the Parliament (Constitution) Act.
Before 1 March 1994, this Section
stated that "(s)eparate provisions shall apply on the
right of the Åland Legislative Assembly to submit
initiatives" to the Parliament of Finland. According to
an amendment to the Form of Government (Constitution)
Act, creating Section 52a which entered into force on 1
March 1994, the Åland Islands have self-government
in accordance with separate enactments.
At the same time, Section 33 of
the Parliament (Constitution) Act was amended so as to
include a provision according to which the procedure of
enactment concerning the Autonomy Act of Åland
Islands and the Act on Acquisition of Land on the
Åland Islands is the one established in the these
laws. Moreover, Section 33 contained a provision
according to which the Legislative Assembly of
Åland has the right to present legislative
initiatives to the Finnish Parliament according to
separately enacted provisions. Sections 75 and 120 of
the new Constitution of Finland, which entered into
force on 1 March 2000, carry over these provisions to
the new constitutional setting.
Does the above characterization
mean that the Åland Islands enjoyed a very weak
constitutional status before 1994? On the contrary,
despite the fact that the Åland Autonomy Act and
the Act on Acquisition of Land on the Åland
Islands do not declare themselves to be constitutional
laws, it could even possible to conclude that their
hierarchical status may, in fact, be higher than
that of the other four constitutional laws: both the
Autonomy Act and the Land Acquisition Act stipulate
(Section 69 and Section 17, respectively) that
amendments to these laws are made only in the order
established for the amendment of the Constitution in
Section 67 of the Parliament (Constitution) Act and
with the consent of the Legislative Assembly of
Åland.
However, the Finnish Constitution
does not regard these two Acts relating to the
Ålandic autonomy arrangements as Acts of a
formally higher order than the other Constitutional
Acts, but rather as Acts of Exception to the
Constitution. As concerns Ålandic consent to
amendments to the Autonomy Act, Section 69 of this Act
requires materially identical decisions of the Finnish
Parliament and the Legislative Assembly of Åland,
so that the Ålandic decision is made by a
two-thirds qualified majority. The Land Acquisition Act
does not, in the first place, according to Section 17,
require any super-majority in the Legislative Assembly
of Åland, but leaves this particular entrenchment
and the raising of the decision-making threshold to the
two-thirds level to be determined in an Ålandic
Act (which itself must be enacted in that
manner).
Already before 1994, the position
of the Åland Islands was therefore clearly
entrenched: the Finnish legislature could not rid
itself of the Åland Islands or alter Åland's
formal or material status by using only those
legislative means which are at its own disposal. With
the amendments of 1994 and 2000 to the Finnish
Constitution, the position and self-government of
Åland have been properly anchored in the
Constitution of Finland and thereby further entrenched.
Hence the Åland Islands seem
to enjoy a strong position: we may describe the
constitutional setting of the Islands before 1994 in
terms of a special and regional entrenchment, special
meaning here the requirement of the constitutional
amendment formula with a two-thirds majority in
Parliament for alterations of the Autonomy Act and
regional meaning here the requirement of Ålandic
consent for any modifications to the Autonomy Act.
Moreover, after amendments to the
Finnish Constitution on 1 March 1994, it now also
includes a clear general entrenchment of the Åland
Islands arrangement. In this way, the constitutional
setting of the Åland Islands has become even more
fixed than it was before and forms now an established
part of the new Constitution of Finland.
Referring to the material
Constitution, Section 6 of the Election Act (SOF
714/1998) creates the Åland Islands as one
constituency from which one MP shall be elected to the
Finnish Parliament. This is a special arrangement that
undoubtedly contains a strain of federalism, but it
must at the same time be noted that the Ålandic
constituency has more or less the same number of voters
as the average number of votes in relation to the seats
in the Parliament elsewhere in Finland.
Two Cases of
"Accommodative Federalism": Tatarstan in Russia and
Quebec in Canada
5.1.
Tatarstan
The Russian Federation is a
federal State. According to Article 5 of the 1993
Constitution of the Russian Federation, the Russian
Federation shall consist of republics, territories,
regions, federal cities, and autonomous regions and
autonomous areas, which shall be equal subjects of the
Russian Federation. As a subject of federation, each
republic shall have its own constitution and
legislation, while a territory, region, federal city,
autonomous region and autonomous area shall have its
own charter and legislation.
The federated structure of the
Russian Federation shall, according to the same
Article, be based, inter alia, on the equality
and self-determination of the peoples in the Russian
Federation. Hence the concept of self-determination is
here used in an internal meaning and its scope made
dependent on the contents of the federal
constitution.
Under Article 65, in all 91
different kinds of subjects of federation can be
identified, and the listing of the subjects indicates
that a number of peoples, not only populations, are
involved in the constitutional structures of Russia.
Hence there is a constitutional
concept of self-determination for the various peoples
that results in the creation of certain law-making
powers in their institutions (see below). Although the
point of departure is equality between the different
subjects, the republics have a specific right to
institute their own state languages, which shall be
used alongside the state language of the Russian
Federation in bodies of state power, bodies of local
self-government and state institutions of the
republics.
Article 71 of the Federal
Constitution creates an exclusive jurisdiction for the
federation, while Article 72 provides for a joint
jurisdiction of the Russian Federation and the subjects
of the Russian Federation. An exclusive jurisdiction is
created for the subjects of federation by Article 73
outside of the jurisdiction of the Russian Federation
and the powers of the Russian Federation and outside
the joint jurisdiction of the Russian Federation and
the subjects of the Russian Federation.
Concerning these matters, framed
as residual powers, the subjects of the Russian
Federation shall exercise the entire spectrum of state
power. Because the subjects of federation have these
residual powers and because these subjects seem to give
expression to the existence of certain peoples or
populations, it seems as if a certain
self-determination in the meaning of self-government
were indeed created for the various subjects.
To the extent that federal laws
are enacted within the framework of the exclusive
jurisdiction of the federation or the joint
jurisdiction of the federation and the subjects, laws
and other regulatory acts of the subjects shall conform
to the federal laws, as well. This clear-cut hierarchy
of norms is, however, inverted inside the exclusive
jurisdiction of the subjects of the federation, where,
according to Article 76, Paragraph 6, the norm of the
subject shall apply. On the basis of this, it should be
possible to conclude that the subjects of federation
have a position, which according to Table 1, above,
would justify a place in Section I.
What the reference to
self-determination in the Russian Constitution could
mean is perhaps illustrated by the so-called Tatarstan
case from the first Constitutional Court of Russia,
handed down before the enactment of the 1993
Constitution, which was dealt with above. Here, the
national level is perhaps a little bit more
illuminating than the international level as concerns
judicial interpretations that relate to
self-determination and the pouvoir constituant.
It must be remembered when reading this decision that
the Constitution of 1993 had not yet been adopted when
the decision was handed down by the court.
A referendum was planned for 21
March 1992 in the Autonomous Republic of Tatarstan
within the Russian Federation on the following
question: "Do you agree that the Tatarstan Republic is
a sovereign state and a party to international law,
basing its relations with the Russian Federation and
other republics and states on treaties between equal
partners? Yes or no?"
The Constitutional Court of the
Russian Federation ruled, inter alia, that the
the Referendum Law of Tatarstan conformed to the
Constitution of the Russian Federation. However, the
referendum itself was held to be unconstitutional under
Articles 70, 71, and 78 of the Constitution of the
Russian Federation with respect to that part of the
question which considered Tatarstan a subject of
international law and which stated that the relations
between Tatarstan and the Russian Federation, other
republics, and States were based on treaties between
equal partners.
The reason for its
unconstitutionality was the unilateral alteration of
the national and governmental structure of the Russian
Federation, which would have meant that Tatarstan did
not belong to the Federation. By submitting the
definition of the position of the republic to a
referendum, the Supreme Council of Tatarstan had tried
to make it into a norm of the highest order, approved
by the people.
Therefore the measure was not
only of an implementing character in relation to the
Declaration of Sovereignty issued by Tatarstan on 30
August 1990, but also a normative issuance which would
determine the direction and content of the legislative
process.
In this respect, the Court seemed
to understand the referendum as an exercise of the
pouvoir constituant of some kind (although it
was not entirely an instance of constitution-making)
and of the right of self-determination, but considered
such a possibility as pre-empted under the 1978 Russian
Constitution at least to the extent it might involve a
unilateral secession. The Court also raised objections
concerning the unclear formulation of the
question.
However, the argumentation of the
Court was not only based on the (extensively amended)
1978 Constitution of the Russian Federation, but also
involved considerations of international law. The Court
stated that Tatarstan had the right to submit a
question on its constitutional status to the people,
because this right followed from the people's right of
self-determination. This right was guaranteed
domestically as well as internationally.
As to the latter, the Court
referred to common Article 1 of the Covenants of 1966,
ratified by the Supreme Soviet of the USSR on 18
September 1973, to the UN Declaration on Friendly
Relations, to Article 29 of the Universal Declaration
of Human Rights, to the UN General Assembly Resolution
41/117(1987) on the Indivisibility and Interdependence
of Economic, Social, Cultural, Civil and Political
Rights, and to the CSCE commitments Russia had taken
upon itself.
The Court viewed the
international documents as emphasizing that the right
of self-determination should not be invoked for the
purpose of disrupting the unity of a state and a
nation.
Hence without denying the
people's right of self-determination, which could be
realized by means of a legal act of will, such as the
referendum, the Court concluded that two elements of
international law, namely the requirement of
territorial unity and the observance of human rights,
did limit the right of self-determination. Therefore,
and because the Constitution of the Russian Federation
did not contain any right of secession for a republic,
Tatarstan's attempt to acquire more self-determination
than the Republic already had was considered
impermissible.
This decision seems to indicate
that, at least according to the former Constitutional
Court of Russia, the pouvoir constituant,
especially when understood as an equivalent to the
right to self-determination, is to some extent limited
by international law.
The chaotic situation in Russia
at the time of the decision is illustrated by the fact
that the decision of the Constitutional Court had no
effect in Tatarstan: the referendum was held on 21
March 1992 according to the plans that had been
declared unconstitutional by the Court, and in the
referendum, a clear majority of the voters answered the
above question in the affirmative.
After the vote the legislature of
the Republic of Tatarstan adopted and declared a new
Constitution in accordance with the result of the
referendum and thus tried to give effect to the notion
of the pouvoir constituant.
However, despite the popular
decision and the new Constitution, Tatarstan found no
ways to assert its "independence": it has since claimed
to be a sovereign State that has voluntarily joined the
Russian Federation and that it consequently is free to
leave the Federation at any time, but the Republic was
nevertheless included as one of the Subjects of the
Federation in Article 65 of the 1993 Constitution of
the Russian Federation, and finally on 15 February
1994, the Republic of Tatarstan signed a formal
Agreement of Federation with Russia, which guarantees
to Tatarstan a better position in the Federation, for
instance, concerning economic decision-making than the
other subjects of the Federation generally speaking
have and which excludes unilateral changes to or
cancellation of the Treaty. Tatarstan has kept its own
Constitution (which it has the right to under the 1993
Constitution of the Russian Federation) and claims to
have associated itself with Russia, but not to have
acceded to or integrated itself with the same.
Perhaps the reference to
association with the Russian Federation should,
according to the interpretation of Tatarstan, be
understood as association in terms of the Friendly
Relations Declaration (see above).
5.2.
Quebec
A somewhat similar situation
arose in Canada when the Province of Quebec asserted
its wish to secede from the Canadian federation and to
achieve statehood at the international level. In the
so-called Secession Reference, the Supreme Court
of Canada was presented in 1996 with three hypothetical
questions to be resolved in the Court's advisory
capacity, of which it deemed necessary to answer two:
1) Under the Constitution of
Canada, can the National Assembly, legislature or
government of Quebec effect the secession of Quebec
from Canada unilaterally (that is, would Quebec be able
to effectuate secession without prior negotiations with
the other provinces and the federal government)?, and
2) Does international law give
the National Assembly, legislature or government of
Quebec the right to effect the secession of Quebec from
Canada unilaterally. The second question was specified
by asking whether there is a right to
self-determination under international law that would
give the National Assembly, legislature or government
of Quebec the right to effect the secession of Quebec
from Canada unilaterally?
Hence the Supreme Court of Canada
tried both the domestic and the international law
applicable to the case, and within those spheres, it
reviewed the prescriptions of constitutional law on the
one hand and the right to self-determination on the
other.
The secession issue is
domestically regulated on the basis of the Constitution
Act, 1982, which establishes four fundamental
organising principles relevant to the issue, namely
federalism, democracy, constitutionalism and the rule
of law, and respect for minorities (for instance,
Paras. 148 and 149), which all work in symbiosis.
By looking into all these
elements instead of only the procedural issues, the
Court invoked a holistic approach to the legal problem.
The Court concluded that in a federal system of
government, such as the Canadian, political power is
shared by two orders of government: the federal
government on the one hand and the provinces on the
other, where both levels are essentially representative
and based on popular franchise.
This arrangement delivers the
consent of the governed. Each level is assigned
respective spheres of jurisdiction by the Constitution.
Federalism is a central organisational theme of the
Constitution, whilst it at the same time is a political
and legal response to underlying social and political
realities. Democracy, again, is a basic structure of
the Canadian Constitution and means the existence of
certain political institutions, including freely
elected legislative bodies at the federal and
provincial levels.
Taken together, democracy and
federalism may then, at least in Canada, mean that
there can exist different and equally legitimate
majorities in different provinces and territories and
at the federal level.
However, democracy is not just
majority rule: the opinions of those affected must
also be taken into account, and democracy actually
accommodates cultural and group identities.
Moreover, democracy is not just
a matter of procedure, but is fundamentally connected
to substantive goals, such as the promotion of
self-government.
This can be viewed as a
requirement of a continuous process of discussion,
expressed by the Constitution Act, 1982, as a right of
each participant in the federal arrangement to initiate
constitutional change. The Court also pointed out that
this right imposes a corresponding duty on the other
participants in the federal arrangement to engage in
constitutional discussions in order to acknowledge and
address democratic expressions of a desire for change
in other provinces.
Against this background of
constitutionalism and the mutual rights and duties
under the Constitution, the purportedly original
popular sovereignty held by the constituent Provinces
in the federal arrangement can not revert back to a
Province where "the people" in their exercise of their
popular sovereignty could decide to secede by majority
vote alone.
The commitment to the federal
arrangement can not be extinguished by a unilateral act
of will. Hence it would not be possible to legitimately
circumvent the Constitution by resort to a majority
vote in a province-wide referendum, although the
holding of such a referendum can well be understood as
a legitimate expression of the will of that particular
part of the whole population.
Constitutional rules, such as the
participation of one Province in the constitutional
arrangement, can be amended, but only through a process
of negotiation which, ensures that there is an
opportunity for the constitutionally defined rights of
all parties to be respected and reconciled. The wish of
a Province to effectuate secession from Canada was
therefore deemed to establish a duty to negotiate with
other participants to the constitutional process and to
require an amendment to the Constitution.
Secession could not be
effectuated by Quebec without prior negotiations with
the other provinces and the federal government: such an
amendment must be negotiated in the light of the same
constitutional principles that gave rice to the duty to
negotiate: federalism, democracy, constitutionalism and
the rule of law, and the protection of
minorities.
The referendum issue is of some
interest in this context. The Court concluded that
the referendum, which is the first step of secession,
was not at issue, but the final act of purported
unilateral secession.
However, because the clear
expression of democratic will in a referendum in the
province of Quebec was viewed as the supposed juridical
basis of such an act, the Court felt itself compelled
to examine the possible juridical impact of such a
referendum on the functioning of the Canadian
Constitution and on the claimed legality of a
unilateral act of secession.
The Court pointed out that the
Constitution of Canada does not itself address the use
of the referendum procedure. Hence at the federal
level, such a provincial referendum could be mainly of
an advisory character, although it could be considered
compelling evidence of the wishes of the population of
a province and would lead the representatives of the
people in the amendment negotiations. The Court
concluded that the results of a referendum have no
direct role or legal effect in the constitutional
scheme of Canada. However, the Court was of the opinion
that such a referendum undoubtedly could provide a
democratic method of ascertaining the views of the
electorate on important political questions on a
particular occasion. In fact, the principle of
democracy embedded in the Constitution "would demand
that considerable weight be given to a clear expression
by the people of Quebec of their will to secede from
Canada, even though a referendum, in itself and without
more, has no direct legal effect, and could not in
itself bring about unilateral secession" (Para.
87).
Such a referendum would,
according to the Court, carry some weight: it would
confer legitimacy on the efforts of the government of
Quebec to initiate the amendment procedure of the
Constitution in order to secede by constitutional
means.
The Court also referred to some
qualitative elements of such a referendum results, if
they would be taken as an expression of the democratic
will of a population: the resolution must be supported
by a "clear" majority, which means that the referendum
result must be free of ambiguity both in terms of the
question asked and in terms of the support it achieves.
Such a clear repudiation of the
existing constitutional order and the clear expression
of the desire to pursue secession by the population of
a province would, as a legal consequence, give rise to
a reciprocal obligation on all parties to the federal
arrangement to negotiate constitutional changes to
respond to that desire.
Hence the provinces and the
federal government would have to enter into
negotiations and conduct them in accordance with the
underlying constitutional principles of federalism,
democracy, constitutionalism and the rule of law, and
respect for minorities.
In conclusion concerning the
constitutional aspects, although "a sovereign people
exercises its right to self-government through the
democratic process" (Para 64), the Court was of the
opinion that under domestic constitutional law, "Quebec
could not purport to invoke a right of
self-determination so as to dictate the terms of a
proposed secession to the other parties: that would be
no negotiation at all" (Para. 91).
At the same time, "the rights of
other provinces and the federal government cannot deny
the right of the government of Quebec to pursue
secession, should a clear majority of the people of
Quebec choose that goal, so long and in doing so,
Quebec respects the rights of others" (Paras. 92 and
151).
The solution to the problem is a
middle way, the duty to negotiate an amendment in a
situation in which none of the majorities, expressed
either through the referendum or through the
representatives of the populations, either that of the
province or that of the federation, is allowed to trump
each other (Paras. 93 and 150).
On the contrary, the aim would be
to reconcile "various rights and obligations by
negotiation between two legitimate majorities, namely
the majority of the population of Quebec and that of
Canada as a whole" (Para. 152). "Our democratic
constitution necessarily accommodate a continuous
process of discussion and evolution, which is reflected
in the constitutional right of each participant in the
federation to initiate constitutional change." (Para.
150) However, the Court refrained from pointing out the
procedure towards such settlement.
After the examination of the
national law especially at the federal constitutional
level, the Court moved on to consider the level of
international law and especially the right to
self-determination.
The Court stated at the outset
that "it is clear that international law does not
specifically grant component parts of sovereign
states the legal right to secede unilaterally from
their parent state" (Para. 111).
General international law was
found not to contain any right to unilateral secession
or any express denial of such a right. However, the
Court found that such a denial is, to some extent
"implicit in the exceptional circumstances required for
secession to be permitted under the right of a people
to self-determination, e.g., the right of secession
that arises in the exceptional situation of an
oppressed or a colonial people" (Para. 112).
The Court went on to review the
international instruments that mention the right to
self-determination, starting from Articles 1(2) and 55
of the Charter of the United Nations and common Article
1 of the International Covenant on Civil and Political
Rights and the International Covenant on Economic,
Social and Cultural Rights and arriving through the
Declaration on Friendly Relations (G.A. Res.
2625/XXV(1970)) to the Vienna Declaration and Programme
of Action and the Declaration on the Occasion of the
Fiftieth Anniversary of the United Nations (G.A. Res.
50/6 (1995)) to Part VIII of the Final Act of the
Conference on Security and Co-operation in Europe.
Hence the Supreme Court of Canada
went through a similar set of international documents,
both hard law and soft law, as the Russian
Constitutional Court, above, and arrived at the
conclusion that the right to self-determination will
normally be exercised by peoples within the framework
of existing sovereign states and consistently with the
maintenance of the territorial integrity of those
states (Paras. 127-131).
Hence the right to
self-determination of a people is normally fulfilled
through internal self-determination, within the
framework of an existing state (Para. 126).
In the exceptional circumstances
where this is not possible, a right to secession may
arise (Para. 122) and lead to the creation of external
self-determination as defined in the Friendly Relations
Declaration (Para. 126), above.
Such a situation could be at hand
when a people is blocked from the meaningful exercise
of its internal right to self-determination, for
instance, when the government of the state does not
represent the whole people on the territory without
distinction of any kind. In a situation of that kind,
the ability of a people to exercise its right to
self-determination is being totally frustrated. (Paras.
134, 135, 154).
In the circumstances at hand in
Quebec, the population is expected to achieve its
self-determination within the framework of their
existing state (Para. 154). According to the Court,
this is not the case in the context of Quebec: the
population of Quebec is not under colonial rule, it not
oppressed and it is not denied access to government
(Para 138). Hence it does not enjoy a right at
international law to effect the secession of Quebec
from Canada unilaterally.
The Court did not rule out the
possibility of de facto secession as a result of
a unilateral and unconstitutional declaration of
independence (Para. 106), but felt that it was
prevented from ruling on such an uncertain extra-legal
future contingency.
The ultimate success of such
secession would, according to the Court, be dependent
on effective control of a territory and recognition
by the international community (for instance, Para.
142) and also to some extent on the recognition of
other states of such secession.
However, the Court rejected the
existence of such a legal category as violating the
rule of law (Para 108). It also felt that recognition
by other states of secession would not provide even any
retroactive justification for the act of secession,
either under the Constitution of Canada or under
international law (Para. 155). In fact, the Court was
of the opinion that a unilateral secession on an
illegal basis might prevent the established States and
the international community from recognising the
independence of Quebec (Paras. 103, 143).
Concluding
Remarks
This report suggests that
self-determination can imply self-government both at
the State and at the sub-State level. In so far as
self-determination is created against the background of
international law, it should also at a sub-State level
produce an institutional arrangement which acquires a
share in the totality of internal self-determination of
the State in question. To this end, elaborate
constitutional mechanisms are required for the creation
of a devolved share of exclusive legislative powers in
the sub-State entity, which may be a constituent state
of a federation or an autonomous territory. Our review
indicates that it is possible to create exclusive
legislative powers for an elected assembly in Kosovo so
that Kosovo acquires a share in the internal
self-determination of Yugoslavia.
In this respect, the Åland
Islands case and the Kosovo case may share at least a
few common features, although it is not the intention
of this report to claim that the inhabitants of the
Åland Islands form a people. In both cases, the
decision-making has taken place at the international
level within the framework of competent bodies in
international organisations, either by the Council of
the League of Nations or by the Security Council of the
United Nations.
In addition, in both cases, the
international decision-making bodies have actually
prevented the areas concerned from exercising the
self-determination in the form that existed by the time
of the decision-making. Instead, the decision-making
bodies of the international organisations replaced the
populations of the areas concerned (perhaps it could
even be said that the decision-making bodies exercised
the self-determination on behalf of these areas) and
adopted the basic features of the institutional
solutions. It could be said that in both cases, the
international bodies have chose the mode according to
which self-determination of the population is to be
realised.
To be sure, the Åland
Islands settlement of 1921 was much more specific than
Security Council Resolution 1244(1999), but both
contain a number of corner-stones for more final
implementation, which at least in the case of the
Åland Islands is full of examples of 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 including
minority rights, and de-militarisation.
What the Åland Islands
settlement contains and what is at not least yet found
in the resolutions of the Security Council is a
complaints procedure, which, although it became
obsolete after the collapse of the League of Nations,
made it possible for the authorities of the Åland
Islands to address grievances. No such complaint was
ever filed, but the existence of such a compliance
procedure is of some principal importance. Whether the
competent international body to review possible claims
of non-compliance is the International Court of
Justice, the Human Rights Committee or some other
organ, perhaps of an ad hoc character, is also
more than a technical matter.
Very little research has so far
been conducted in the area of the reasons for the
success and failure of sub-State arrangements. The
durability of autonomy arrangements may be regarded as
one indicator of success, and results indicate that
significant international involvement in the
establishment process of an autonomy as well as in the
post-implementation of the agreement correlates in a
positive way with a high durability level.
This certainly was the case in
relation to the Åland Islands, and it should be an
encouraging element in relation to the situation in
Kosovo. However, "the higher the degree of
militarisation of a conflict preceding the
establishment of an autonomy, the less likelihood there
is of high autonomy durability". The cases of the
Åland Islands, Tatarstan and Quebec never
escalated into military actions, which may be one
reason for their durability.
There is no doubt, however, that
the degree of militarisation was and is considerable in
relation to Kosovo, and against this background, the
prognosis is not too good, unless a controlled decrease
of militarisation is achieved. In so far as the final
solution is modelled against the background of
self-determination it may be worth pointing out that
self-determination seems to assume peace.
Hence the path towards the
implementation of the institutional solutions may be
long, especially with a view to the fact that for the
purposes of self-determination, Kosovo is today neither
a state nor an autonomous sub-state entity. The
situation between the Åland Islands in the 1920s
and Kosovo in the 21st century is fundamentally
different, for instance, in respect of the parties that
are expected to implement a resolution on the internal
structures. In the Åland Islands case Finland
would implement the settlement by means of internal
legislation and the Åland Islanders grew to accept
the situation, but in the Kosovo case there seems to
exist more parties that have a strong role in the
implementation, at least Yugoslavia and possibly Serbia
as well as the United Nations (the international
community) and the Kosovars.
According to the existing
research, the internal conditions for autonomy
nevertheless seem more important than the external.
Hence the emphasis on
constitutional and political solutions at the national
level is important. The processes aiming at internal
solutions started by S.C.Res. 1244(1999) and followed
up, for instance, by IAI and UNA/USA are certainly
necessary against that background. One of the concerns
could be that the rather general S.C.Res. 1244(1999),
which is intended to be of a temporary character
pending the final settlement, becomes a much more
permanent foundation for the governance of Kosovo than
originally planned, extending its validity, for
instance, over the first decade of the 21st century.
The cases of the Åland
Islands, Tatarstan and Quebec offer many pieces of
valuable information about institutional design. Recent
research suggests, however, that "autonomies within
democratic states are more likely to be durable than
other autonomies".
The Åland Islands has
existed in a democratic State from the beginning and
Quebec has, through centuries, grown to be a part of a
democratic State.
Tatarstan is a part of a newly
democratised (or democratising) State, which still
lives through a certain period of transition, although
the constitutional components have already been
established.
No such democratisation has yet
taken place in Yugoslavia (or Serbia, for that matter)
which would work in this direction and support the
durability of any autonomy solution for Kosovo.
However, it would seem to be important to start to
discuss and establish those institutions of Kosovo that
should exercise the exclusive jurisdiction of Kosovo,
to define their powers, and to transfer powers to them
from the administrative machinery created by the
international community.
At the same time, these
institutions should start to exercise the joint
jurisdiction now held by the international
administration together with the latter so as to create
procedures for the future. Also, the international
administrative machinery should begin to explore ways
in which to incorporate the Yugoslav or Serb
institutions in the exercise of that exclusive
jurisdiction that remains for them and in the exercise
of the joint jurisdiction in the area of Kosovo.
Security Council Resolution
1244(1999) with its references to the Rambouillet text
and its full implementation, offers a good basis for
the development of a scheme of devolution. Finally, the
population of Kosovo should be persuaded to participate
in the government of the whole of Yugoslavia (and also
Serbia, as the case may be) by including their
representatives in the elected bodies and
administrative institutions of Yugoslavia and
Serbia.
The internal dimension may also
be more important than the international in terms of
the possible breaking up of autonomies. For instance,
"a major threat to autonomies is major structural
changes in the state system that affect the central
government". No such changes have occurred in Finland
since the creation of the autonomy of the Åland
Islands, while the Tatarstan and Quebec cases suggests
that situations of change may open a door of
opportunity for a development of the constitutional
position of a sub-State entity. Dramatic changes may
take place in Yugoslavia in the future, and the
function of the international community could then be
to speak for the necessary sub-State
solutions.
"It seems that "weak states" make
"weak autonomies". However, the picture is not that
simple. As was argued concerning the connection between
democracy and autonomy, the economic factor may be
important, but some cases show that this is not
necessarily true. Economically weak states, then, may
not necessarily make weak autonomies. Politically weak,
or unstable, states may be a greater threat to an
autonomy. Having a different political structure within
one's borders may provide a tempting excuse for
governments that seek explanations for political
failures. This is, however, only one side of the coin.
The political stability and culture of an autonomy
within a politically weak state, is probably not so
different from that of the central government. Thus,
challenging political manoeuvres against the central
government may well have their source in internal
autonomy politics."
The durability issue may,
especially in its internal form, translate itself to
the method of entrenchment, which the sub-State
arrangement is subject to. With entrenchment is meant
various legal guarantees for the permanency of the
arrangement. It is possible to distinguish between at
least six forms of entrenchment.
Firstly, there may exist a
general entrenchment, which means that sub-State
arrangements are established in the national
constitution. A semi-general entrenchment can be
distinguished in situations where the sub-State
arrangement is originally created in an organic law
under the constitution of the country.
Secondly, it is possible to
distinguish a regional entrenchment, which means
that a separate regional reaction through the
representative assembly of the sub-State entity or
through a regional referendum is envisaged whenever the
legislation concerning the sub-State arrangement is
being amended.
Thirdly, a special
entrenchment exists in situations in which the
statute outlining the more practical modalities
attached to the sub-State can be amended only according
to a special amendment rule that complicates the
amendment of the statute.
Fourthly, an international
entrenchment may come about in situations in which
the international community guarantees a sub-State
arrangement in the creation of which it perhaps has
participated.
Fifthly, a treaty-based
entrenchment is present when, for instance, two
States agree in a formal treaty that one of them
creates a sub-State arrangement for a minority in its
territory.
Sixthly, it is possible to
envision an entrenchment under the right of
self-determination, which could protect existing
sub-State arrangements against weakenings against the
will of the population, provided that the beneficiaries
of the arrangement could be characterised as a people.
The fourth, fifth and sixth
methods of entrenchment could be connected to a
possible complaints and compliance
procedure.
The Åland Islands case
involves at least the general, regional, special and
international forms of entrenchment and is a pointer to
the direction that elaborate and overlapping methods of
entrenchment may create stability for the arrangement.
The Tatarstan and Quebec cases,
in turn, are pointers in the direction that such
entrenchment may be important also for the State so
that no unilateral changes in the status of the
sub-State entity can take place and lead to the
disruption of the territorial unity of the State.
In fact, in the two legal cases
presented above, the domestic courts relied heavily on
the existence of a norm under international law that
protects the territorial integrity of an established
State. This is also the message of Security Council
Resolution 1244(1999). The concept of
self-determination therefore works in two directions:
at the same time as it may affect the situation of a
population or a people within an existing State,
self-determination also gives assurance to the State
concerning its territorial integrity and the permanency
of the arrangement.
All three cases dealt with here
point in the direction that there exist no generally
applicable solutions, but the solutions must at least
to some extent be tailor-made in respect of the
particularities of the case. However, at the same time
as a sub-State arrangement is designed for a certain
population and their representative government and
effective participation is guaranteed, it is important
to make sure that the arrangement contains safeguards
for a possible "minority in minority" situation so that
the majority population in the State or other smaller
populations would not feel themselves threatened by the
sub-State arrangement. This is important, because the
sub-State entity would normally have exclusive
legislative powers within certain areas, and on the
basis of these powers, the authorities of the sub-State
entity may be in a position to exercise public powers
in relation to the minorities within that
entity.
The idea behind the creation of
all kinds of special jurisdictions in the form of
sub-State entities is to make all parties more or less
happy. None of the parties can have its way completely,
but already a substantial influence over issues that
are important for the situation at hand may help to
create a positive atmosphere.
The Åland Islands may be
seen as a practical illustration of this: a medical
survey was conducted in Finland with a view to finding
out why the general level of health of the Åland
Islanders was higher than that of the rest of Finland,
and the relevant factor that could be established as an
explanation was the positive effects of the
self-government of the area on the possibilities of the
inhabitants to meaningful self-realisation of their
needs and aspirations. At least in this respect, the
basic aims of the 1921 Settlement before the Council of
the League of Nations have been realised.
The international community does
not have any established procedures to deal with
situations of the kind that have emerged in Kosovo.
However, case by case, certain patterns may develop. It
may be premature to speak about the necessity of the
parties to submit to such patterns as established in
advance for this kind of situations, but it would
probably be important to develop, within the framework
of the United Nations, some models of action that can
be lifted in where needed and on the basis of which
more permanent solutions can be sought for.
Appendix
II:
PROCÈS-VERBAL DE LA
DIX-SEPTIÈME SÉANCE DU CONSEIL, 27
JUIN.
________
Présents: Tous les
représentants des Membres du Conseil et le
Secrétaire général.
L'Espagne est
représentée par M. de Reynoso, et le
Brésil par M. Blanco.
Les représentants de la
Finlande et de la Suède prennent place à la
table du Conseil.
M. Hymans rappelle que le Conseil
a reconnu que la meilleure manière d'arriver
à une solution, en ce qui concerne les garanties,
serait de la rechercher par un accord entre les
représentants de la Finlande et ceux de la
Suède, avec le concours d'un Membre du Conseil. Il
déclare que les conversations prévues ont eu
lieu sous sa présidence et qu'il en apporte le
résultat sous la forme d'un texte précis qui
sera, si le Conseil l'adopte, joint à sa
résolution du 24 juin.
Il donne lecture du texte
suivant, qui contient l'accord auquel sont
arrivées les deux parties:
«1. La Finlande,
résolue à assurer et à garantir à
la population des Iles d'Aland la préservation de
sa langue, de sa culture et de ses traditions locales
suédoises, s'engage à introduire à bref
délai dans la loi d'autonomie des Iles d'Aland du
7 mai 1920 les garanties ci-dessous:
«{2.} Le Landsting et les
Communes d'Aland ne sont, dans aucun cas, obligés
d'entretenir ou de subventionner d'autres écoles
que celles où la langue d'enseignement est le
suédois. Dans les établissements scolaires de
l'Etat, l'enseignement se fera également dans la
langue suédoise. Sans le consentement de la
commune intéressée, la langue finnoise ne
peut être enseignée dans les écoles
primaires entretenues ou subventionnées par l'Etat
ou par la commune.
«3. Lorsqu'un immeuble
situé à Aland est vendu à une personne
qui n'a pas son domicile légal dans la province,
toute personne y domiciliée légalement, ou le
Conseil de province, ou bien la commune dans laquelle
l'immeuble est situé, a le droit de racheter
l'immeuble à un prix qui, faute d'accord, sera
fixé par le tribunal de première instance
(Häradsrätt) en tenant compte du prix
courant.
«Des prescriptions
détaillées seront fixées par une loi
spéciale concernant la procédure du rachat et
la priorité entre plusieurs offres.
«Cette loi ne peut être
modifiée, interprétée ou abrogée
que dans les mêmes conditions que la loi
d'autonomie.
«4. Les immigrants dans
l'archipel d'Aland jouissant des droits de citoyen en
Finlande n'acquerront le droit de suffrage communal et
provincial dans les Iles qu'après cinq ans de
domicile légal. Ne seront pas
considérées comme immigrantes, les personnes
qui ont eu précédemment cinq ans de domicile
légal dans les Iles d'Aland.
«5. Le gouverneur des Iles
d'Aland sera nommé par le Président de la
République finlandaise, d'accord avec le
Président du Landsting des Iles d'Aland. Au cas
où cet accord ne pourrait se réaliser, le
Président de la République choisira le
gouverneur sur une liste de cinq candidats,
désignés par le Landsting et présentant
les garanties requises pour la bonne administration des
Iles et la sécurité de l'Etat.
«6. La province d'Aland aura
le droit d'employer pour ses besoins 50 % des revenues
de l'impôt foncier, outre les revenus prévus
par l'article 21 de la loi d'autonomie.
«7. Le Conseil de la
Société des Nations veillera à
l'application des garanties prévues. La Finlande
transmettra au Conseil de la Société des
Nations, avec ses observations, toutes plaintes ou
réclamations du Landsting d'Aland au sujet de
l'application des garanties susdites, et le Conseil
pourra, au cas où la question serait de nature
juridique, consulter la Cour permanente de Justice
internationale."
Le Conseil approuve unanimement
les termes de cet accord et décide de l'annexer
à sa résolution du 24 juin; il adresse ses
remerciements à M. Hymans pour l'heureuse
réussite des négociations.
Les représentants de la
Finlande et de la Suède se retirent.
[Quoted from Tore Modeen, De
folkrättsliga garantierna för bevarandet av
Ålandsöarnas nationella karaktär.
Åbo : Åbo Akademi, 1973, pp.
190-191.]
Appendix II:
Legislative powers of
the Åland Islands and the
State/Sections 18 and 27 of the
Autonomy Act.
Section 18
Legislative authority
of Åland Islands
Åland Islands shall have
legislative powers in respect of
1) the organisation and duties of
the Legislative Assembly and the election of its
members, the Government of Åland and the officials
and services subordinate to it;
2) the officials of Åland,
the collective agreements on the salaries of the
employees of Åland and the sentencing of the
officials of Åland to disciplinary
punishment;
3) the flag and coat of arms of
Åland and the use thereof in Åland, the use
of the Åland flag on vessels of Åland and on
merchant vessels, fishing vessels, pleasure boats and
other comparable vessels whose home port is in
Åland, without limiting the right of State offices
and services or of private persons to use the flag of
the State;
4) the municipal boundaries,
municipal elections, municipal administration and the
officials of the municipalities, the collective
agreements on the salaries of the officials of the
municipalities and the sentencing of the officials of
the municipalities to disciplinary
punishment;
5) the additional tax on income
for Åland and the provisional extra income tax, as
well as the trade and amusement taxes, the bases of the
dues levied for Åland and the municipal
tax;
6) public order and security,
with the exceptions as provided by section 27,
subparagraphs 27, 34 and 35; the firefighting and
rescue service;
7) building and planning,
adjoining properties, housing;
8) the appropriation of real
property and of special rights required for public use
in exchange for full compensation, with the exceptions
as provided by section 61;
9) tenancy and rent regulation,
lease of land;
10) the protection of nature and
the environment, the recreational use of nature, water
law;
11) prehistoric relics and the
protection of buildings and artifacts with cultural and
historical value;
12) health care and medical
treatment, with the exceptions as provided by section
27, subparagraphs 24, 29 and 30; burial by
cremation;
13) social welfare; licences to
serve alcoholic beverages;
14) education, culture, sport and
youth work; the archive, library and museum service,
with the exceptions as provided by section 27,
subparagraph 39;
15) farming and forestry, the
regulation of agricultural production; provided that
the State officials concerned are consulted prior to
the enactment of legislation on the regulation of
agricultural production;
16) hunting and fishing, the
registration of fishing vessels and the regulation of
the fishing industry;
17) the prevention of cruelty to
animals and veterinary care, with the exceptions as
provided by section 27, subparagraphs 31-33;
18) the maintenance of the
productive capacity of the farmlands, forests and
fishing waters; the duty to transfer, in exchange for
full compensation, unutilised or partially utilised
farmland or fishing water into the possession of
another person to be used for these purposes, for a
fixed period;
19) the right to prospect for,
lay claim to and utilise mineral finds;
20) the postal service and the
right to broadcast by radio or cable in Åland,
with the limitations consequential on section 27,
subparagraph 4;
21) roads and canals, road
traffic, railway traffic, boat traffic, the local
shipping lanes;
22) trade, subject to the
provisions of section 11, section 27, subparagraphs 2,
4, 9, 12-15, 17-19, 26, 27, 29-34, 37 and 40, and
section 29, paragraph 1, subparagraphs 3-5, with the
exception that also the Legislative Assembly has the
power to impose measures to foster the trade referred
to in the said paragraphs;
23) promotion of
employment;
24) statistics on conditions in
Åland;
25) the creation of an offence
and the extent of the penalty for such an offence in
respect of a matter falling within the legislative
competence of Åland;
26) the imposition of a threat of
a fine and the implementation thereof, as well as the
use of other means of coercion in respect of a matter
falling within the legislative competence of
Åland;
27) other matters deemed to be
within the legislative power of Åland in
accordance with the principles underlying this
Act.
Section 27
Legislative authority
of the State
The State shall have legislative
power in matters relating to
1) the enactment, amendment,
explanation and repeal of a Constitutional Act and an
exception to a Constitutional Act;
2) the right to reside in a
country, to choose a place of residence and to move
from one place to another, the use of freedom of
speech, freedom of association and freedom of assembly,
the confidentiality of post and
telecommunications;
3) the organisation and
activities of State officials;
4) foreign relations, subject to
the provisions of chapter 9;
5) the flag and coat of arms of
the State and the use thereof, with the exceptions
provided by section 18, subparagraph 3;
6) surname and forename,
guardianship, the declaration of the legal death of a
person;
7) marriage and family reasons,
the juridical status of children, adoption and
inheritance, with the exceptions provided by section
10;
8) associations and foundations,
companies and other private corporations, the keeping
of accounts;
9) the nationwide general
preconditions on the right of foreigners and foreign
corporations to own and possess real property and
shares of stock and to practice a trade;
10) copyright, patent, copyright
of design and trademark, unfair business practices,
promotion of competition, consumer
protection;
11) insurance
contracts;
12) foreign trade;
13) merchant shipping and
shipping lanes;
14) aviation;
15) the prices of agricultural
and fishing industry products and the promotion of the
export of agricultural products;
16) the formation and
registration of pieces of real property and connected
duties;
17) mineral finds and mining,
with the exceptions as provided by section 18,
subparagraph 19;
18) nuclear energy; however, the
consent of the Government of Åland is required for
the construction, possession and operation of a nuclear
power plant and the handling and stockpiling of
materials therefor in Åland;
19) units, guages and methods of
measurement, standardisation;
20) the production and stamping
of precious metals and trade in items containing
precious metals;
21) labour law, with the
exception of the collective agreements on the salaries
of the Åland and municipal officials, and subject
to the provisions of section 29, paragraph 1,
subparagraph 6, and section 29, paragraph 2;
22) criminal law, with the
exceptions provided by section 18, subparagraph
25;
23) judicial proceedings, subject
to the provisions of sections 25 and 26; preliminary
investigations, the enforcement of convictions and
sentences and the extradition of offenders;
24) the administrative
deprivation of personal liberty;
25) the Church Code and other
legislation relating to religious communities, the
right to hold a public office regardless of
creed;
26) citizenship, legislation on
aliens, passports;
27) firearms and
ammunition;
28) civil defence; however, the
decision to evacuate residents of Åland to a place
outside Åland may only be made with the consent of
the Government of Åland;
29) human contagious diseases,
castration and sterilisation, abortion, artificial
insemination, forensic medical
investigations;
30) the qualifications of persons
involved in health care and nursing, the pharmacy
service, medicines and pharmaceutical products, drugs
and the production of poisons and the determination of
the uses thereof;
31) contagious diseases in pets
and livestock;
32) the prohibition of the import
of animals and animal products;
33) the prevention of substances
destructive to plants from entering the
country;
34) the armed forces and the
border guards, subject to the provisions of section 12,
the actions of the authorities to ensure the security
of the State, state of defence, readiness for a state
of emergency;
35) explosive substances, as to
the part relating to State security;
36) taxes and dues, with the
exceptions provided by section 18, subparagraph
5;
37) the issuance of paper money,
foreign currencies;
38) statistics necessary for the
State;
39) archive material derived from
State officials, subject to the provisions of section
30, subparagraph 17;
40) telecommunications; however,
a State official may only grant permission to engage in
general telecommunications in Åland with the
consent of the Government of Åland;
41) the other matters under
private law not specifically mentioned in this section,
unless the matters relate directly to an area of
legislation within the competence of Åland
according to this Act;
42) other matters that are deemed
to be within the legislative power of the State
according to the principles underlying.
