VII.Trading Self-determination for Autonomyor Enhanced Self-governance
Territorial autonomy has been the classical means ofsettling self-determination disputes outside the colonial context. It denotes self-governance ofa demographically distinct territorial unit within thestate. The extent ofautonomy granted will normally be establishedin the constitution and/or an autonomy statute. This statute willoften be legally entrenched as a special or organic law, to ensure thepermanence ofthe arrangement. While operating within theoverall constitutional order ofthe state, autonomy implies originaldecision-making power in relation to devolved competences. In thisrespect autonomy differs from decentralisation, which allows localagencies some room to implement decisions taken at the centre. Autonomy provides competence to local actors to take suchdecisions themselves.Virtually all settlements ofthe Cold War era were autonomysettlements. Building on the early precedent ofthe Aaland Islandsfrom the League ofNations era
99
, the South Tyrol settlement offersthe best-known example from that period
100
. However, there are anumber ofothers, including home rule for the Faroe Islands,established in 1948, and Greenland, established in 1979; specialarrangements for the Brussels capital region and for certain otherparts ofBelgium; Madeira, and the Azores in relation to Portugalunder the 1976 Constitution; the Spanish autonomies ofthe78
99
Decision ofthe Council ofthe League ofNations on the Aaland Islands, 24 June1921. Full text available http://www.kultur.aland.fi/kulturstiftelsen/traktater/eng_fr/1921a_en.htm, accessed 3 November 2008.
100
Italy has maintained that the arrangements for South Tyrol (the so-called ‘Package’and the ‘Operational Calendar’) which led to the new Autonomy Statute of 1971–1972 are not formally the result ofinternational agreement. However, it is fairto say that the arrangement has also been internationally entrenched, includingthrough parallel decisions by the Italian and Austrian parliaments.
Basque Country, Galicia, Catalonia, and Andalusia, adoptedaccording to the 1978 post-Franco Constitution; and thedevolution ofScotland and Wales of1998.
101
Since the outbreak ofviolent secessionism triggered by the ColdWar transition, autonomy has been advocated once again as apossible solution. In the 1990s, a major initiative towards this endwas launched through the UN General Assembly by thegovernment ofLiechtenstein.
102
The theory was that secessionistentities would be able to accommodate their aims through self-governance without the need to disrupt the territorial integrity of existing states.
103
Recent practice distinguishes two types ofself-governance solutions. These are local or regional autonomy andfederalisation. The latter, which will be considered in the nextsection, tends to be offered where the secessionist entity hasestablished effective control over the relevant territory with noprospect ofrecapture by the centre, or where the entity can pointto a federal status it enjoyed previously.It is ofcourse widely accepted that autonomy
can
be a meansofaddressing the minority rights entitlements ofsuchTrading Self-determination for Autonomy or Self-governance79
101
See the handy survey by T. Benedikter,
The Working Autonomies in Europe: Territorial Autonomy as a Means ofMinority Protection and Conflict Solution in the European Experience
. Fulltext available at http://www.gfbv.it/3dossier/eu-min/autonomy.html, accessed 3November 2008.
102
This initiative is detailed in W. Danspeckgruber and Sir A. Watts, eds.,
Self-determinationand Self-administration: A Sourcebook
, Boulder: Lynne Rienner (2000).
103
See generally R. Bernhardt, “Federalism and Autonomy”, in Y. Dinstein (ed.),
Models ofAutonomy
, New Brunswick: Transaction Press (1981), at 23–30; see also Y. Ghai (ed.),
Autonomy and Ethnicity
, Cambridge: Cambridge University Press (2000); Hannum,
Autonomy
,
supra
n. 18; R. Lapidoth,
Autonomy: Flexible Solutions to Ethnic Conflicts
,Washington: United States Institute ofPeace Press (1997), at b27 and 57ff; J. Marko, Autonomie und Integration, Vienna, Cologne, Graz:
Rechtsinstitute des Nationalitätenrechts im funktionalen Vergleich
(1995), at 262ff; A. Reynolds (ed.),
The Architecture ofDemocracy
,Oxford: Oxford University Press (2001); M. Suksi (ed.),
Autonomy: Applications and Implications
, The Hague: Kluwer Law International (1998); H. Hannum (ed.),
Documents on Autonomy and Minority Rights
, Dordrecht:Martinus Nijhoff(1993); K. Gal
, MinorityGovernance in Europe
, Flensburg/Budapest: European Centre for Minority Issues/LocalGovernment Initiative (2002); Weller and Wolff,
Autonomy
,
supra
n. 1.
communities.
104
On the other hand, it remains contested whetherterritorially compact minorities have a positive right to self-governance through territorial autonomy.
105
An exception exists inrelation to indigenous peoples. As noted previously, according to ILOConvention 169, indigenous peoples enjoy significant entitlements of self-governance in relation to matters connected with their lands,beliefs, and economic and cultural development.
106
The recognitionoffurther self-determination entitlements has been the subject of protracted discussion at the UN.
107
Ultimately, the UN General Assembly adopted the UN Declaration on the Rights ofIndigenousPeoples. The Declaration confirms that: “Indigenous peoples havethe right to self-determination. By virtue ofthat right they freelydetermine their political status and freely pursue their economic,social and cultural development”.
108
The declaration adds that:
109
Indigenous Peoples, in exercising their right to self-determination, have theright to autonomy or self-government in matters relating to their internaland local affairs, as well as ways and means for financing their autonomousfunctions.
80Escaping the Self-determination Trap
104
C. Palley,
Possible Ways and Means to Facilitate the Peaceful and Constructive Resolution of Situations Involving Racial, National, Religious and Linguistic Minorities
, UN Working Paper,E/CN.4/Sub.2/1989/49. Art. 27 ICCPR – the only legally binding provision onminorities in a general universal human rights instrument – does not addressautonomy. However, GA Res. 47/135, the Declaration on the Rights ofNational,Ethnic, Religious and Linguistic Minorities, at least implies it in Art. 2.3: see theCommentaryprovided by the Chairman ofthe UN Working Group, Asbjorn Eide,E/CN,4.SUB.2/AC.5/2001/2, 2 April 2001, paras. 38ff.
105
M. Weller,
Towards a General Comment on Self-determination and Autonomy,
UN WorkingPaper submitted to the Commission on Human Rights, Sub-commission on thePromotion and Protection ofHuman Rights, Working Group on Minorities, 11
th
Session, E/CN.4/Sub.2/AC.5/2005/WP.5.
106
Art. 7 ofILO Convention 169 concerning Indigenous and Tribal Peoples inIndependent Countries, adopted on 27 June 1989 by the General Conference oftheInternational Labour Organisation at its 76th session.
107
Indigenous Issues, Human Rights and Indigenous Issues
, Report ofthe working groupestablished in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 on its 11th session, E/CN.4/2006/7922 March 2006.
108
UN General Assembly Resolution 61/295, A/RES/61/295, para 3. Full text availableat http://www.undemocracy.com/A-RES-61-295.pdf, accessed 23 October 2008.
109
Ibid.
, Article 4.
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