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Trends and Prospects of Autonomy and Federalism as Devices for Balancing Self-Determination and State Sovereignty

  

Markku Suksi is Professor of Public Law at Åbo Akademi University (Finland) and former Director of the Institute for Human Rights and former Finnish E.MA National Director. He  has published in the areas of territorial and non-territorial autonomy fundamental rights, linguistic rights, constitutional law, administrative law, and comparative law. In 2011 he published Sub-State Governance through Territorial Autonomy, which is a comparative analysis of several autonomous entities. In 2015 he co-published Access to Information and Documents as a Human Right. Dr. Suksi also has extensive experience in constitutional law consultations and election observation in countries as Hungary, Romania, Estonia and the Russian Federation. He delivered this speech at the Global Autonomy, Governance and Federalism (GAGF) Forum, 19-20 October 2016, in Manila. Read the proceedings of GAGF 2016 here.

 

My speech is conditioned on the existence of rule of law and respect for human rights, without which none of the mechanisms for sub-state governance can work properly.

 

The issue here is how to divide sovereignty, more specifically, internal sovereignty. Without doubt, this is a sensitive issue in any country where distribution of legislative power is contemplated between the central government and one or several sub-state entities. However, around 65 countries in the world have created territorial autonomies within their borders. In such situations, singular sub-state entities are incorporated in a country that otherwise would be a unitary state. In addition, a relatively large portion of the countries of the world are organized as federations. In federations, the entire country consists of constituent states at the sub-state level.

 

In Europe, a majority of states is not anymore constituted as pure unitary states, which is the “textbook definition” of a state. Instead, a majority of European states display various forms of sub-state solutions, either through federal arrangements or through autonomy arrangements. This should be a clear indication that a similar development is possible elsewhere in the world. And indeed, over the past decades, an increasing number of states have re-constituted themselves as ones with territorial autonomies or as federations. Several states are contemplating such development.

 

In such situations, division of sovereignty is on the table, more specifically a distribution of powers between the centre and the sub-state entities, in particular as concerns legislative powers. While territorial autonomies typically have enumerated powers, that is, a list of powers they can exercise within their jurisdiction, the central government or the national law-maker keeps the residual powers, that is, powers that have not been mentioned in the enumeration for the autonomy. The assignment of powers is normally the opposite in federations: the federal level operates on the basis of enumerated powers, while the constituent states have residual powers. Some intermediate forms exist, too, where both the central level and the sub-state level have enumerated powers.

 

Of course, the attribution of power in this relationship between the national level and the sub-state level can look very different depending on what kind of powers each of the levels wield and what the material contents of those powers are. Generally, the central level is in charge of typical sovereignty-related issues, such as currency, foreign powers and defense, while the sub-state level is in charge of matters that are close to the individual, such as education, social affairs and health care. Each distribution of powers is, however, bound to be different and be reflective of the unique circumstances and needs in particular at the sub-state level. Of course, in federations, the constituent states are institutionally participating in the exercise of power at the federal level through a senate or a federation council, while this is not the case with autonomy arrangements.

 

What seems to be an interesting feature separating at least strong territorial autonomies from federal arrangements is the absence of the supremacy doctrine in autonomy arrangements. In federations, a supremacy doctrine normally dictates that in situations of norm conflict, federal law sets aside sub-state law and preempts the possibility of sub-state law-makers to enact legislation. However, territorial autonomies are often not touched by any supremacy doctrine. This means that the national law cannot enter the legislative jurisdiction of the law-maker of the autonomous territory. This makes autonomy arrangements more independent than constituent states in most federations. Hence there are different kinds of autonomies and federations in terms of strength. Hong Kong and Macau in China, Zanzibar in Tanzania, the Åland Islands in Finland and the historic example of the Memel Territory in the inter-war Lithuania can be mentioned as examples of strong autonomies, while entities such as Aceh in Indonesia, Puerto Rico in the USA and Corsica in France can be considered weak entities in this regard.

 

Certainly, the authoritarian leadership of Lithuania refused to understand the way in which the autonomy of the Memel Territory should have functioned according to the law and tried continuously to encroach into the jurisdiction of the Memel Territory.

 

The provinces in the Canadian federation are very strong because of a very limited federal supremacy, while constituent states in the federations of the United States of America, Germany and Austria display a weaker position. Entities at the weak end of the scale are, however, stronger and more particular than mere regional administration of a state, which may be exercising administrative powers on the basis of decentralization.

 

Conflict of some sort is often the backdrop to the need to create autonomy arrangements. Conflict of some kind is also at least indirectly behind the creation of federal solutions. An open conflict of an international or internal nature, which sometimes is violent or threatens to become violent, is a state of things that is intolerable and should be avoided. Constitutional law offers a range of interesting organizational options by means of which it should be possible to move forward into a more peaceful existence. However, introducing autonomy or federalism does not mean that the open or violent conflict is turned into its complete opposite, by no means. In the ideal situation, an open and even violent conflict is confined under the constitutional law of autonomy or federalism into a latent conflict between the central power and the sub-state entity that can be dealt within the framework of the rule of law. We should thus not expect that the sub-state solution created will totally extinguish the conflict and result in complete harmony in the state. Instead, any example from an autonomy arrangement or federation will inform us that a certain level of conflict, a latent conflict, will continue in the day-to-day practical intercourse between the central level and the sub-state level. This latent conflict is what we need to manage by way of legal rules of a constitutional nature within the sovereignty of the state. We need to transform the open conflict by means of constitutional arrangements into a system where the central level and the sub-state level can continue the grinding against each other, but within the boundaries of the law, managed under the law.

 

To defuse conflict by means of autonomy or federalism is a complex issue and not easy to achieve. There is in my opinion considerable fear amongst states that creation of sub-state entities either by means of territorial autonomy or federal arrangements could lead to secession, that is, to the breaking out of a part of the country from the state. In such a situation, the aim of a breakaway part of the state would be to create a new sovereign state or to join another sovereign state by means of unilateral secession. We have significant evidence from constitutional or supreme courts of a number of countries that constitutional law of those countries does not support unilateral secession. The Constitutional Court of Russia and the Supreme Court of Canada concluded that referendums in Tatarstan and Quebec, respectively, could be held, but if and when successful, they would not have any constitutional effect towards breaking up the federation. However, as a consequence of the referendums, Tatarstan could secure a more beneficial agreement of union with the federation than the other subjects of the Russian Federation and a positive result in a Canadian province would create a duty to negotiate with other partners in the federation. The Constitutional Court of Spain gives even less effect to decisions in Catalonia on independence and is negatively disposed towards referendums in autonomous communities on or around the issue of independence.

 

Also, international law does not support unilateral secession. The high courts in Russia and Canada tried also the aspect of international law to the secession issue and came to the conclusion concerning both Tatarstan and Quebec that secession is not allowed under public international law. The African Commission on Human Rights and Peoples’ Rights has reached the same conclusion twice, first when not granting the request of an organization from Katanga representing “the people” of that region, a part of the Democratic Republic of Congo, to become independent, and then by confirming that denial of independence in another case dealing with the English-speaking part of Kamerun. Instead, the African Commission felt that the political status of a group of persons, which under the African Charter could be a people, should be resolved by means of internal constitutional arrangements, for instance, self-government, local government, federalism or confederalism.

 

As explained, secessions that are voluntary can lead to the emergence of a new state with legitimacy in the international arena. Because there is no right to unilateral secession, we can draw the conclusion that the sovereignty of the state is still alive and kicking, and news about its death are greatly exaggerated. In fact, the sovereignty of the state is protected by international law. This is apparent, for instance, in light of the 1970 UN Declaration on Friendly Relations. It should not be excluded that situations involving gross violations of human rights, such as genocide or complete exclusion of a group from representative procedures, could produce a situation conducive to secession, but those are clearly very exceptional situations. In addition, the UN Declaration on the Rights of Indigenous Peoples from 2007 bars in Article 46(1) the use of self-determination of the indigenous peoples from disrupting the territorial integrity of the state[1]. Only in the rare colonial situations that involve the right to self-determination of a people, such as concerning the Kanak in New Caledonia, which is a part of France, or the Inuit in Greenland, which is a part of Denmark, is there a clear right to opt for independence, integration with the colonial power or any other political status, which could be autonomy. In both of these cases, dismantling of the colonial relationship should take place by using the referendum.

 

Because there is no right to unilateral secession except in the colonial context, the solution to a re-structuring of the state has to be found inside the state both when the right to self-determination of a people applies and when that right does not apply. Although international law contains neither a right to autonomy nor any right to federalism, it is possible to connect autonomy arrangements and sometimes also federalism to the right to self-determination of a people as part of the entire population of the state. From this perspective, exercise of self-determination should, outside of the colonial situation, be exercised within the existing state, because according to the mainstream interpretation, the state, as currently constituted, is in its entirety an expression of the self-determination of the total population within that state. Self-determination offers therefore an assurance to the state of continued integrity and existence. At the same time, it seems that other peoples within a state may have the option, on the basis of the right to self-determination, to consider an autonomy arrangement that has been created under the law to be protected against attempts on the part of the state to dilute the arrangement. Also, autonomy and federalism deliver guarantees of representation for a population, autonomy at the sub-state level with regular election-based participation at the national level, federalism at the sub-state level but also with election-based and institutional representation at the federal level.

 

With sovereignty of the state protected by international law, states can also consider, in the safety of their established position, various ways to facilitate participation of sub-state entities in the exercise of foreign powers. Increasing practice in this field indicates a variety of options for sub-state entities, although the main rule still seems to be that foreign relations are the exclusive power of the state, in particular in federations. Membership in international organizations is normally dependent on the statute of the international organization, but where the structure of the international organization is relaxed in relation to membership, autonomous entities can become members of such, which is the case with the Nordic Council in relation to the Nordic autonomies of the Åland Islands, Faroe Islands and Greenland. Also the WTO, as well as some other international organizations, is relatively open to membership of entities that formally speaking are not states, that is, regular subjects of international law. For instance, under Chinese law, membership of Hong Kong, China, and Macau, China, in the WTO is not prevented. However, Tanzania protested the granting of membership in the OIC, Organization of Islamic Conference, to Zanzibar, whereupon the sub-state entity’s membership was terminated. Other kinds of member status with international organizations could also be possible for sub-state entities, as in the IMO, where the Faroe Islands, Hong Kong China and Macao China are associate members. The United Kingdom has, within its domestic procedures, allowed a Scottish minister represent the UK in the Council of the EU, and the same has happened with Germany when a minister of a Land has represented Germany in the EU Council.

 

Contacts between sub-state entities and foreign donors of development aid is also possible, as in the case of Aceh, which may have direct contacts with donors. More significantly, sub-state entities have in some instances been granted some treaty powers, as in the cases of Faroe Islands, Greenland, Hong Kong China, and Macau China. In the Danish legislation concerning treaty powers of the Faroe Islands and Greenland, certain limitations are made, however, with the effect of limiting treaty powers to the area of legislative powers of the sub-state entity and only to the extent that the Danish state has not exercised treaty powers. At the same time, the understanding is clear for the Danish state that Denmark bears responsibility under international law also for the treaties concluded by the two sub-state entities. This is obviously the correct point of view from the perspective of public international law: the subject of international law, in this case the state, is liable for possible breaches of international law brought about by its sub-state entities. Finally, sub-state entities are known to have established relationships with other subjects of international law at the level of representations. The possibility of Hong Kong China and Macau China to have such representations is clearly below the ambassadorial level and limited to consular offices, but is significant as a phenomenon, because several other sub-state entities are clearly aiming at developing the proper form of “representation” at the international level and in relation to other states. Such representation of sub-state entities is, however, practiced in a number of cases, such as in the Faroe Islands in Denmark, which has a representation in Brussels with the EU, but also in London, Reykjavik and Moscow.

 

The trends and prospects that I have identified are manifold. There is an increasing number of autonomy arrangements and federations in the world, and this means that there is an increasing number of instances of distribution of legislative powers between the centre and the sub-state entity. This does not mean that the state as a sovereign entity is being dismantled, because international law still protects the sovereignty of the state, in part also on the basis of the right to self-determination: there is no right to secession except perhaps under very particular circumstances. Because this continues to be the case, states should be able to adopt a relaxed attitude towards the grant of autonomy or creation of federalism. Particularly for autonomy arrangements, it should even be possible to consider allowing autonomous entities to participate in suitable ways in the exercise of foreign powers of the state, but obviously within the constraints of international law and within the material area of the powers of the sub-state entity. The representation of the population of a sub-state entity at an international level is entirely possible and increasingly practiced.


 


[1] Article 46(1): “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”

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