Positive experiences of autonomous regions as a source of inspiration for conflict resolution in Europe

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Doc. 9824

3 June 2003

Positive experiences of autonomous regions as a source of inspiration for conflict resolution in Europe

Report

Political Affairs Committee

Rapporteur: Mr Gross, Switzerland, Socialist Group

Summary

Most present-day conflicts no longer occur between states but within states and are rooted in tensions between states and minority groups which demand the right to preserve their identities. These tensions are partly due to the territorial changes and the emergence of new states which followed the two world wars and the collapse of the old communist system, and also reflect the inevitable development of the concept of the nation-state, which, hitherto, viewed national sovereignty and cultural homogeneity as essential.

Autonomy as applied in states governed by the rule of law can be a source of inspiration in seeking ways to resolve internal political conflicts. Autonomy allows a group which is a minority within a state to exercise its rights while providing certain guarantees of the state’s unity, sovereignty and territorial integrity.

The autonomous status may be applied to various systems of political organization and means that autonomous entities are given specific powers, either devolved or shared with central government while remaining under the latter’s authority.

In order to provide the right conditions for the permanence of autonomy, the report recommends compliance with a number of basic principles, including the creation of a legal framework for autonomous status, a clear division of powers and the establishment of democratically elected legislative and executive bodies in autonomous regions.

I. Draft Resolution

1. The resurgence of tensions in Europe, varying in intensity and frequently the product of unresolved conflicts within states, remains a cause of concern to the Parliamentary Assembly. Today, indeed, most political crises in Europe occur within states.
2. These renewed tensions are partly due to the territorial changes and the emergence of new states which followed the two world wars and the collapse of the former Communist system in the 1990s.
3. These tensions also reflect the inevitable development of the concept of the nation-state, which viewed national sovereignty and cultural homogeneity as essential. Nowadays, particularly in view of developments in the practice of democracy and international law, States are faced with new requirements.
4. Most of the present conflicts can very often be traced to the dichotomy between the principle of indivisibility of states and the principle of identity, and are rooted in tensions between states and minority groups which demand the right to preserve their identities.
5. The vast majority of European states today include communities which have different identities. Some of these demand their own institutions and want special laws allowing them to express their distinctive cultures.
6. States must prevent tensions from developing by introducing flexible constitutional or legislative arrangements to meet their expectations. By giving minorities powers of their own, either devolved or shared with the central government, states can sometimes reconcile the principle of territorial unity and integrity with the principle of cultural diversity.
7. The Council of Europe, which is committed to peace and to the prevention of violence as essential to the promotion of human rights, democracy and the rule of law, believes that the positive experience of autonomous regions can be a source of inspiration in seeking ways to resolve internal political conflicts.
8. Many European states have already eased internal tensions, or are now in the process of doing so, by introducing various forms of territorial or cultural autonomy, embodying a wide range of principles and concrete measures which can help to resolve internal conflicts.
9. There is no denying that autonomy is a concept which can have negative connotations. It can be seen as a threat to the state’s territorial integrity and a first step towards secession, but there is frequently little evidence to sustain this view.
10. Autonomy, as applied in states respectful of the rule of law which guarantee their nationals fundamental rights and freedoms, should rather be seen as a “sub-state arrangement”, which allows a minority to exercise its rights and preserve its cultural identity while providing certain guarantees of the state’s unity, sovereignty and territorial integrity.
11. The term “territorial autonomy” applies to an arrangement, usually adopted in a sovereign state, whereby the inhabitants of a certain region are given enlarged powers, reflecting their specific geographical situation, which protects and promotes their cultural and religious traditions.
12. The constitutions of most Council of Europe member states do not recognize the right to secede unilaterally. However, indivisibility must not be confused with the concept of a unitary state, and indivisibility of the state is thus compatible with autonomy, regionalism and federalism.
13. The autonomous status may be applied to various systems of political organization, ranging from straightforward decentralization in unitary states to a genuine division of powers, either symmetrically or asymmetrically, in regional or federal states.
14. In the past, autonomy was introduced in two stages, and originated in three ways, being established by regional entities when central states were founded, introduced to resolve territorial tensions, or sponsored by the international community.
15. Autonomy is not a panacea, and the solutions it offers are not universally relevant and applicable. However, failures should be blamed, not on autonomy as such, but on the conditions in which it is applied. Autonomous status must always be tailored to the geography, history and culture of the area concerned, and to the very different characteristics of specific cases and conflict zones.
16. With a view to relieving internal tensions, the central government must react with understanding when minority groups, particularly when they are sizeable and have lived in an area for a long period of time, demand greater freedom to manage their own affairs independently. At the same time, the granting of autonomy must never give a community the impression that local government is a matter for it alone.
17. Successful autonomy depends on balanced relationships within a state between majorities and minorities, but also between minorities. Autonomous status must always respect the principles of equality and non-discrimination.
18. All interpretation, application and management of autonomy shall be subject to the authority of the State, and to the will and judgment of the national parliament and its institutions.
19. Positive discrimination, i.e. favourable representation in the organs of central government, can often be used to involve minorities more effectively in the management of national affairs.
20. It is fundamental that special measures must also be taken to protect “minorities within minorities”, and ensure that the majority and other minorities do not feel threatened by the powers conferred on an autonomous entity. In these autonomous entities, the Framework Convention for the Protection of National Minorities must also be applied, for the benefit of minorities within minorities.
21. The Assembly calls on the governments of member states to respect the following basic principles when granting autonomous status:

i. An autonomous status, which depends by definition on co-operation and co-ordination between the central government and autonomous entities, must be based on an agreement negotiated between the parties concerned.

ii. Central government and autonomous authorities must recognize that autonomous status is part of a dynamic process and is always negotiable.

iii. It would be appropriate for the statutes and founding principles underlying autonomous status to be included in the Constitution rather than in legislation alone so that amendments can only be made in accordance with the Constitution. To avoid later disputes, agreements on autonomous status must explicitly define the repartition of powers between the central and autonomous authorities.

iv. Agreements on autonomous status must guarantee appropriate representation and effective participation of the autonomous authorities in decision-making and the management of public affairs.

v. Agreements on autonomous status must provide that autonomous entities are to have legislative and executive authorities, democratically elected at local level.

vi. Agreements on autonomous status must provide for funds and/or transfers which allow autonomous authorities to exercise the extra powers conferred on them by central government.

vii. To ensure that powers are not abused, special machinery must be established to resolve disputes between central government and the autonomous authorities.

viii. If tensions between central government and the autonomous authorities persist, the international community should sponsor the negotiation process.

ix. Devolution of powers to autonomous entities must imperatively protect the rights of minorities living within them are ignored or suppressed.

II. Draft Recommendation

1. The Assembly considers that autonomous status must always give the autonomous region concerned a legislative and an executive body democratically elected at local level. These bodies should have appropriate powers to pass laws and enforce them in the autonomous territory while remaining subject to the law and prerogatives of central government – as defined in the European Charter of Regional Self-Government adopted by the CLRAE.
2. The Assembly believes that the adoption of a European legal instrument would enable states facing internal conflicts to find constitutional or legislative solutions which would allow them to preserve the state’s sovereignty and territorial integrity while respecting the rights of minorities.
3. This legal instrument must stipulate that the exercise of powers devolved to autonomous entities shall comply with the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, particularly the principles of equality, non-discrimination and secularism.
4. In this context, the proposals contained in the Helsinki Declaration (28 June 2002), which recognizes the possibility of formulating basic concepts and principles applying to all systems of regional autonomy, merit the attention of the Council of Europe’s member states.
5. The Assembly accordingly recommends that the Committee of Ministers

• prepare a European legal instrument (Article 11 of the Declaration), based on the principles laid down in the European Charter of Regional Self-Government, taking account of the member states’ experience, and also making it possible to recognize and promote the common principles of regional autonomy, with respect for the European Convention for the Protection of Human Rights and Fundamental Freedoms and its principles of equality and non-discrimination.

Contents

Page

Explanatory memorandum by the rapporteur 7

I. Introduction 7

II. Development of the concept of autonomy 8

III. Concept of autonomy and right to self-determination 9

a) Diversity of forms of autonomy 9

b) Diversity of institutional frameworks 10

c) Defining the scope of autonomy 11

d) Legal framework of autonomy 13

e) Positive and negative aspects of autonomy 13

IV. Case studies

a) The Åland Islands 14

b) Alto-Adige / South Tyrol 15

c) Factual comparison of the two most successful historical cases 16

d) Sri Lanka 17

e) Faeroes Islands 20

V. Conceptual clarifications

a) Right to internal and external self-determination 21

b) Autonomy as a system of conflict resolution 22

VI. Analysis of the functioning of autonomous entities

a) Political systems and division of powers 23

i. Federalism

ii. Regionalism

iii. Decentralisation in unitary states

iv. System of devolution

v. Free association

vi. Asymmetric territorial organisation

vii. Establishment of special status

b) Methods of sharing sovereignty 26

c) Settlement of disputes 26

VII. Identification of the basic factors for the success of autonomy

a) Legal design and criteria for short and long-term success 27

b) Geopolitical and demographic aspects 27

c) Political and institutional aspects 28

d) Social, economic and financial aspects 29

e) Cultural aspects 30

f) Respect for human rights 30

VIII. Some thoughts on resolving certain current conflicts by introducing the

concept of autonomy

a) Abkhazia and South Ossetia (Georgia) 30

b) Kosovo as part of Serbia and Montenegro 31

c) Chechnya (Russian Federation) 32

d) Transnistria (Moldova) 32

IX. Conclusion 33

III. Explanatory memorandum by the rapporteur1

I. Introduction

1. The Assembly is concerned about the upsurge in violent tensions in Europe, which is often an indication of unresolved antagonisms within a state. For a long time, political crises had their origins in tensions between states, but today the reasons for these tensions are more likely to be found within states. This is why more than half of the current wars are civil in nature and the result of cultural conflicts. Based on this observation, a motion for a Resolution (Doc 8425) was submitted to the Assembly on the Resolution of ethic conflicts in Council of Europe member states. This motion represents the original source of this report.
2. This increase in tensions can be partly explained by the profound changes that Europe underwent after the collapse of the old communist system in the 1990s. In the last few years, more than twenty new states have been established in central and eastern Europe.
3. A state is generally composed of peoples (or communities) from different cultures. However, not every cultural community can establish a state to promote its cultural traditions, so every state must provide for and introduce flexible constitutional or legislative rules that allow these cultural differences to be expressed while safeguarding its unity at the same time.
4. In the recent history of Europe, states have been created in three successive stages, namely after each of the two world wars and when the cold war ended. These pivotal stages were either marked by the creation of new states or the establishment of autonomous regions. Examples that illustrate this development are the autonomy granted to the Åland Islands in 1921 under the aegis of the League of Nations; to Alto-Adige / South Tyrol in 1947 under the authority of the UN and to Gagauzia (Moldova) in 1990 or the creation of the Autonomous Republic of Crimea (Ukraine) in 1992.
5. Today, it seems that tensions in certain states that have been facing an internal political crisis for many years are being resolved with the aid of autonomy concepts. This appears to be the case in Cyprus or Sri Lanka.
6. The Council of Europe, which wishes to contribute to finding peaceful solutions to all disputes, would like to know to what extent the positive experience of the autonomous regions can constitute a source of inspiration for conflict resolution. It may be observed that a number of states have dealt with their problems or are in the process of doing so by setting up territorial or cultural autonomies and that the latter offer a wide variety of principles, measures, ideas and concepts for resolving these issues.
7. The purpose of this report is to establish the criteria conducive to the success of autonomy in order to provide guidelines for those who want to resolve internal conflicts by introducing self-government and help them avoid mistakes.
8. In the light of the positive experience gained, it will be necessary to determine the factors and conditions that allow autonomy to succeed, to establish the historical, geographical, political, economic, ethnic and cultural aspects to be taken into account in order to define a conceptualized model or to recommend good practices that states facing internal conflicts will be able to draw on.
9. In the final section, we shall study the actual application of this experience in crisis regions, such as Kosovo (Serbia and Montenegro), Chechnya (Russia), Abkhazia (Georgia) and Transnistria (Moldova).

II. Development of the concept of autonomy

10. The concept of autonomy undeniably has a negative, even threatening, connotation. In order to avoid any misunderstanding. it is important to state that our conception of autonomy does not in any way correspond to the use of the word in the past by authoritarian regimes like the Russian empire, the USSR or Yugoslavia. Our definition corresponds to the way the term is employed in democracies, ie states subject to the rule of law that guarantee specific rights and freedoms to their citizens. Democracy and the exercise of basic freedoms are essential for the success of autonomous entities.
11. Autonomy is often seen as a threat to the territorial integrity of a state and the first step towards secession, as might be the case where the Faeroes are concerned. However, it would be wrong to interpret it in this way. Rather, it must be considered as a compromise aimed at ensuring respect for territorial integrity in a state that recognizes the cultural diversity of its population.
12. Avoiding any recourse to violence, autonomy allows a minority group within a state to enjoy its rights by preserving its specific cultural traditions while providing the state with guarantees regarding its unity and territorial integrity. It represents an intermediate solution that makes it possible to avoid both the forced assimilation of minority groups and the secession of part of the state territory. Autonomy thus strengthens the integration of the minorities within the state and is a constructive element for the promotion of peace.

13.       It is necessary to emphasize the integrative potential of autonomy. Recent examples of its introduction, such as in Spain, Italy, Russia (e.g. the Republic of Tatarstan, Azerbaijan (the Autonomous Republic of Nakhichevan) or Moldova (the special status of Gagauzia), show that, as a system guaranteeing both respects for the cultural diversity of minorities and the preservation of territorial integrity, autonomy can represent a constructive solution to any real or latent conflict.

14.       Moreover, as calls for autonomy have become more frequent and are having a greater impact on the international legal order this issue needs to be examined in greater detail.

Portuguese island territories of the Azores and Madeira, which have political and administrative statutes drawn up by the regional legislative assemblies and approved by the Assembly of the Republic.

cultural identity, it incorporates more detailed provisions concerning the right of domicile and the use of Swedish in education. This right of domicile⁸ entitles the citizen to participate in provincial and municipal elections (including the right to stand as a candidate), engage in commercial activities and acquire real estate. It also gives exemption from military service.

• minorities are dispersed throughout the territory, it is only possible to envisage cultural autonomy. When one group is dominant in a region but is dispersed over other regions, a mixed approach combining political and cultural territorial autonomy may be implemented.

¹ I would like to thank the authorities and experts who gave me the benefit of their experience in the course of my research, which began in December 1999 and took me to the Åland Islands, Alto-Adige / South Tyrol, the Faeroes, Copenhagen, à Cagliari (Sardinia), the Azores and Madeira (Portugal), Madrid and Barcelona. I apologize in advance for any errors in, or omissions from, this document and would be grateful for any suggestions.

² Nordquist Kjell-Åke. The Second Åland Islands Question. Mariehamn 2002, Jansson Salminen (ed).

³ “Autonomy as a Conflict-Solving Mechanism”, in Suksi Markku (ed.), Autonomy, Applications and Implications, Kluwer Law, Dordrecht, Netherlands, 1998.

⁴ “Ruth Lapidoth, Autonomy: Flexible Solutions to Ethnic Conflicts, United States Institute of Peace Press, 1997.

⁵ Hannum, Hurst and Lillich, R.B., The concept of autonomy in International law, 1980.

⁶ Local self-government, territorial integrity and protection of minorities, Lausanne 25-27 April 1996, Proceedings of the European Commission for Democracy through Law, contribution by Asbjorn Eide, Director of the Norwegian Institute of Human Rights, Oslo.

⁷ I would like to thank Elisabeth Naucler for her help in writing this chapter and for giving me the book Jansson/Salminen (ed), The Second Åland Islands Question, Autonomy or Independence?, Mariehamn, 2002.

⁸ According to section 7 of the Autonomy Act, the right of domicile in the islands is granted on request to any Finnish citizen who has settled in the province, lived there continuously for at least five years and has a sufficient command of Swedish.

⁹ There is a group of German-speakers in the province of Bolzano, French speakers in Valle d’Aosta, and Slovenian speakers in the eastern part of Friuli-Venezia Guiliana as well as a small group of Ladin speakers in the provinces of Bolzano and Trento.

¹⁰ The Singhalese make up 74% of the population, the Sri Lankan Tamils 12%, the Indian Tamils 5.5% and the Muslims 8%.

¹¹ Buddhistes 70%, Hindus 15.5 %, Muslims 7.5% and Christians 7.7%.

¹² Markku Suksi, Mechanisms of Decision-Making in the Creation of States, 1996.

¹³ Opened for signature on 1 November 1995.

¹⁴ Congress of Local and Regional Authorities of Europe: Federalism, Regionalism, Local Autonomy and Minorities. 1996

¹⁵ Recommendation 1201 (1993) on an additional protocol on the rights of minorities to the European Convention on Human Rights, Assembly debate on 1 February 1993. See Doc. 6742, a report by the Committee on Legal Affairs and Human Rights, rapporteur: Mr. Worms, and Doc. 6749, opinion of the Legal Affairs Committee, rapporteur: Mr de Puig.

¹⁶ Autonomy: Flexible Solutions to Ethnic Conflicts”, United States Institute of Peace Press, 1997.

¹⁷ See Jean-Marie Woehrling, Droits locaux comme instrument de renforcement de l’autonomie territoriale et de gestion des spécificités sociales et culturelles propres à certains territoires. CPLRE. CG/GT/CIV (5) 3

¹⁸ Congress of Local and Regional Authorities of Europe, Recommendation 43 (1998) on “territorial autonomy and national minorities”.

¹⁹ CDL-AD (2003) 2, Opinion on the draft constitution of the Chechen Republic.

²⁰ Declaration presented at the 13th session of the Conference of European Ministers Responsible for Local and Regional Government, meeting in Helsinki on 27-28 June 2002.

²¹        SOC: Socialist Group