International Experiences of Self-Determination

Autonomy and Peace Review
INSTITUTE FOR AUTONOMY AND GOVERNANCE
KONRAD-ADENAUER-STIFTUNG
CONTENTS
Editorial The Rights and Wrongs of Self-Determination of Peoples Speaker Jose de Venecia, Jr. Sri Lankas Peace ProcessThe Tamil Quest for Self determination Jehan Perera Thai Constitutional Development: National Infrastructures for Right to Self-Determination of People Sukree Langputeh The Struggle for Self-determination in Aceh Ayesah Abubakar & Kamarulzaman Askandar European Experiences in Accommodating Ethnic/ National Differences Gabriel Munuera Vials Bangsamoro Self-determination Abhoud Syed M. Lingga 5 7
15
29
43 59
79
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EDITORIAL
This issue of the Autonomy and Peace Review is a sequel to the series of papers published in the January-March edition exploring different models of the right to self-determination of peoples. We feature in this issue the papers presented during the International Roundtable Conference on the Right to SelfDetermination of Peoples which the Institute for Autonomy and Governance and the Konrad Adenauer Foundation organized last July 16-18, 2007 at the Asian Institute of Management Conference Center, Makati City. The roundtable conference brought together academics and practitioners on models of self-determination from countries which are confronted with similar demands for recognition and assertion of the right to self-determination by minority groups
Editorial Board
Benedicto R. Bacani Eliseo R. Suharto Ambolodto Executive Director Mercado Jr., OMI Executive Director Institute for Autonomy Senior Policy Adviser Institute for Strategic and Governance IAG Initiatives Zainudin Malang Amina Rasul Klaus Preschle Executive Director Convenor Country Representative Moro Law and Policy Philippine Council for Konrad-AdenauerCenter Islam and Democracy Stiftung
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within their borders. It fostered better understanding of the claim for selfdetermination of the Moro people and other indigenous groups in the Philippines. The proceedings also informed current processes shaping the structures and policies for the meaningful exercise of Moro selfdetermination at present and in the future. It is hoped that by continuing our discourse on selfdetermination cases in Aceh, South Sudan, South Thailand, Sri Lanka as well as models for accommodating ethnic and nationalist differences in European countries, we would be able to formulate meaningful yet viable formula for Moro self-determination in the southern Philippines.
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The Rights and Wrongs of Self-Determination of Peoples

Speaker Jose de Venecia, Jr. House of Representatives IM PLEASEDAND HONOREDTO ADD MY WELCOME to those already expressed here for all the participants in this International Round-Table Conference on the Right to SelfDetermination of Peoples, sponsored by the Konrad Adenauer Stiftung and the Institute for Autonomy and Governance. The Changed Concept of Self-determination THE CONCEPT OF SELF-DETERMINATION has changed a great deal since the end of the colonial period a generation ago. During the age of empires, self-determination was the battle-cry of the colonial peoples of Asia and Africa. To our independence generation, self-determination was the process by which a country determined its own statehood and formed its own allegiances and government. Self-determination to our fathers meant liberation from foreign rule. Self-determination meant political freedom. But now that the age of colonialism is over, selfdetermination has acquired a new connotation. In our time, it has become re-defined as the process by which
a community within a state controls its own communal life. Self-determination has become a sub-nationalinstead of a nationalidea. The Minoritys Right to Self-determination Diminishes the Majoritys Sense of the Nation As a PHILOSOPHICAL IDEA, the concept of selfdetermination for distinct peoples continues to be widely accepted. But in practice, self-determination for distinct communities living within a larger national unit is difficult to organizeif only because peoples are very seldom, if ever, neatly divided into discrete nations occupying well defined territories. States populated by only one distinct nationality are difficultif not impossibleto find. So that while movements for self-determination may be widespread, they also face just as widespread opposition from majority populations. And its easy to understand why. Because the complete satisfaction of a minority peoples right to self-determination inevitably diminishes not only the majority peoples economic and political power but also offends its sense of nationality and territorial integrity as well. Movements for Self-determinationand the Opposition to them Both Widespread WHY ARE MOVEMENTS for self-determination so widespread in our time? The breakdown of the colonial empires has sharpened
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divisions of ethnicity, language, religion, and even of relative economic or political power among peoples in the pluralist societies of the developing world. And minority peoples in every pluralist state tend naturally to cling to their culture, language, lifeways, religion, - to any characteristics that differentiates them and make them distinct. Meanwhile, the majority people seeks to assimilateto integrateto incorporatethe minority peoples into the national communityunder its leadership. Alternatively it rejects, neglects, or oppresses the minority peoples. Typically, situations like this leads ultimately to conflict. In plural societies such as Yugoslavia, movements for selfdetermination (as in Bosnia-Herzegovina) can be so intense as to produce large-scale atrocities euphemistically called ethnic cleansing. This is also true in many parts of Africanotably in Darfur (Somalia) and in Rwanda- Urundi. Even the civil war in Iraqwhich the American invasion has set offis in many ways motivated by movements of selfdetermination among its peopleswho are divided religiously and ethnically into Shiites, Sunnis and Kurds. The Limits of Self-determination FOR THESE REASON, national leadership in the new countries take local movements for self-determination very seriously indeedsince extremist claims to autonomy can lead so easily into separatist conflicts. In factas you knowwe have conflicts of this kind in Aceh and East Timor in Indonesia; in Pattani in Southern Thailand; among the Karens and a dozen other minorities in Myanmar; and
among the hill tribes of Vietnam and Cambodia. We Filipinos even now are in the middle of mourning our most recent casualties in a separatist war being waged by Islamist in our Muslim communities in portions of Mindanao and Sulu. Six days ago, these rebels killed 14 marines in an ambush in Basilan Provincewhile the soldiers were looking for an Italian missionary the rebels had kidnapped. That ten of the soldiers bodies were mutilated and beheaded tell us how brutal our separatist conflictwhich has raged off and on since the early 1970shas become. Reconciling These Movements for Self-determination with Majority Opposition HOW DO WE RECONCILE minority movements for selfdetermination with the unavoidable resistance from majority peoples that they are bound to attract? To find a resolution, I believe we should start from the truism thatlike every other human rightthe right to self-determination of a community has a corresponding responsibility. The bottom line is that self-determination for minority peoples is generally possible only within the context of the pluralist states territorial integrity, its political stability and its economic well being. Only in a very few instances have separatist conflicts succeeded in creating new states. In our region, only East Timor has been able to do soat such great costand now Timor-Leste faces such dismal prospects (despite the prospect of offshore oil in the Timor Sea), as to make the entire effort seem dubious. Short of separatism, most central governments are generally willing to grant distinct communities nearly as much political and
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social (religious) autonomy as they would wish particularly if these communities are prepared to exert coercive power to obtain them. In the case of conservative Muslim province of Aceh, in the West Sumatra, the government of President Susilo Bambang Yudhoyono went as far as to grant the provincial authority a generous share of the national revenues from Acehs resources of oil and gas. For our Muslim communities of Mindanao and Sulu, Manila has established an autonomous region integrated into the countrys political, military, education, economic and judicial mainstream. This idea of an autonomous region became the basis of the peace agreement with the secularist MNLF. A peace agreement that Manila signed with the MNLF in 1996whose provisions included the incorporation of some of the armed MNLF units into the national armed forcesstill is in force. Another agreement is being threshed out with the Islamist MILF, which broke away from the MNLF in 1981. The talks with the MILF, which are being mediated by the Government of Malaysia, Saudi Arabia and the OICthe Organization of the Islamic Conferencehave overcome their biggest obstaclethe problem of Muslim ancestral lands in parts of western Mindanao on which Christian settlers have laid legal claim. As part of its program of reconciliation, Government is also considering a catch-up program to bring up our Muslim communities to the level of the other administrative regions in the standards indicators of social developmentin levels of nutrition, primary health care, life expectancy, basic education, literacy and mass-povertyover a specific period.
The Pros and Cons of Self-determination for Peoples The present-day plight to Timor-Leste tells us how difficult independent life can be for small national units in our time. Indeed the rise of interdependenceof a new episode of globalizationis driving states to coalesce into supra national units, to gain economic and political economies of scale. A countercyclical movement toward regionalism is evident throughout the world. Independent state states are coming togetherin Western Europe, Latin America, Africa, North America, and in every region of Asia. Individual states are giving up aspect of their sovereignty to regional bodiesin return for access to internal markets, supplies of raw material and of labor, and representation in bargaining units able to deal equally with other regional groupings. Given all these facts of presentday life, self-determination for peoples in practice boils down to autonomy in a certain aspect of governance and in social, cultural and religious life. These include the right to determine laws on personal and family relations; the practice of religion; authority over ancestral lands and over local natural resources such as hydrocarbons and mineral ores; control over local governments, the education system, and police forces. With goodwill and both sides, all these issues can be threshed out amicably. Absent this mutual goodwill, one or the other side initiates the resort to force. And this conflict eventually produces a negotiated result that sometimes favors the central government, and at other times the local communitydepending on the local balance of power.
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All too often, at the end of this exercise, the two sides find themselves making the same concessionsand reaching the same negotiated agreementthey could have reached, had they enough foresight to do so without coming to blows. Our Effort to Reconcile Self-determination for Peoples with Territorial Integrity for the Nation IN THIS COUNTRY, we are doing all we can to reconcile our local communitiesright to self-determination with the Filipino nations sense of nationality and territorial integrity. Not only have we granted formal autonomy to our Muslim community. Our plans for constitutional change include a proposal to change from the unitary to a federal republicto enable the administrative regionswhich are already grouped into language clustersto develop their own unique qualities and characteristics. The Philippine State encouragesas national policythe development of multiplicity of local lifeways and cultures, with mutual respect for each others linguistic, religious and cultural differences. We have enacted into law a code of government decentralizationand are in the process even now of devolving political and administrative power to local governments. Summing Up and Closing Message IN CLOSING, let me assure all of youwhom our friends in the Konrad Adenauer Foundation and the Institute for Autonomy and Governance have gathered, to provide scholarship, experience and wisdom from other places of conflict for our own peace process in Mindanao that we in the Philippine Government appreciate your efforts, and wish your Round-Table the success it deserves. Not only will the restoration of peace in our southern main
island enable our economy to return, unimpeded by instability, to the path of growth. Peace in Mindanao will stop the anguish of those families whose sons are dying in the conflict there. Peace in Mindanao will enable us to begin the work of reconciliation and healing that must be done among its longsuffering peoples. And peace in Mindanao will enable us to make that fertile land blossom once again for all its people. To the restoration of that peace, your deliberation can certainly help. Rest assured we will consider your proposals closely. Thank you; good evening, and Mabuhay!
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Sri Lankas Peace Process The Tamil Quest for Self Determination
Jehan Perera Sri Lanka has had a relatively long tradition of modern democracy, stretching back to the British colonial period. The country was one of the first countries in the world to enjoy universal suffrage in 1931. But the inability of the political elites belonging to the different ethnic communities to share power equitably among themselves led to a series of broken agreements and to acute mistrust between the communities. The difficulty of protecting minority interests in a parliamentary system in which majority-minority relations are strained is exemplified by Sri Lankas modern political history. Sri Lanka has a plural society of several different ethnic communities numbering 19 million. The four main ethnic communities could also be described as nationalities, as they each have a separate sense of ethnic, cultural, historical and political identity, and have their own areas of geographical concentration. According to the 1981 census, which is the last that was conducted in the entire country, the Sinhalese formed the main ethnic group with 74 percent of the population. The majority of the Sinhalese are Buddhists by religion and are mainly concentrated in the south, west and central parts of the country. The Sri Lanka Tamils with 12 percent of the population formed the next major ethnic group. They are a clear majority in the north of the country and the largest single ethnic community in the east. This is the basis for the Tamil demand for autonomy, if not independence, in the north and east of Sri Lanka, which Tamil nationalists prefer to refer to as the Tamil Homeland.
The Muslims formed the third major ethnic group with 8 percent of the population with a concentration in the east. It is now estimated that they form the largest single community in the east. The Up Country Tamils, who are of recent Indian origins, formed the fourth major community with about 5 percent of the population. They live in the central hills of the country and have not been involved in the separatist conflict. Most of the Tamils are Hindu by religion. While a minority of both Sinhalese and Tamils comprising about 7 percent are Christian by religion, they are not considered to be a separate ethnic group. A weakness of the Westminster system that Sri Lanka inherited from the departing British colonial rulers is that in ethnically divided societies, it permits the largest ethnic community to obtain the largest number of seats in parliament, and then take unilateral decisions that affect the smaller ethnic communities. In Sri Lanka, the centralised state bequeathed to the newly independent country in 1948 effectively transferred political power into the hands of the Sinhalese ethnic majority. Nearly four decades later, with Tamil militancy on the rise, the Sri Lankan government attempted to negotiate with the Tamil militant parties in Bhutan with Indian facilitation. At the Thimpu peace talks of 1985, four principles were enunciated by the Tamil parties, both democratic and militant, that negotiated with the Sri Lankan government. The Thimpu principles put forward referred to the Tamils as a nation, entitled to the right of self-determination in a Tamil homeland. These principles were rejected by the government and mainstream Sinhalese-dominated political parties in the country as being tantamount to separation. But they continue to be reference points for the Tamil polity. The challenge to Sri Lanka today is to find a suitable structure of governance in which two or more peoples can co-exist, cooperate and be partners within a single state without the members of one group being able to unilaterally impose their wishes on the members of the other groups. Sri Lankas experience with the
Sri Lankas Peace ProcessThe Tamil Quest for Self-determination
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Westminster system of government is that it has enabled the representatives of the ethnic majority to monopolise power in a unitary constitutional framework and rule over the ethnic minorities. Ceasefire Agreement When the Tamil militancy first arose in the late 1970s, the immediate reaction of the Sri Lankan government was to define the violence as terrorism and to suppress it through law and order methods. When the police proved unequal to the task, the army was sent in, but with the same result, except that a process of escalation had started that fed upon itself. The outcome was civil war in which two armies, one government and one Tamil, faced each other head on in the field of battle. As a corollary the government lost physical control over a large part of the territory in the contested north and east of the country. The Ceasefire Agreement that forms the cornerstone of the peace process was signed in February 2002 with facilitation from the Government of Norway after a period that had witnessed major military setbacks for the government. The Ceasefire recognised the essential military parity between the two parties. It recognised that the LTTE had achieved control over territory, and demarcated lines of control. The Ceasefire Agreement established lines of control between the government and LTTE. It led to the lifting of the governments ban on the LTTE, and to providing the LTTE with an equal place and status at the negotiating table. Among the breakthroughs during the first phase of the peace process, which lasted from February 2002 to April 2003, was the agreement to explore a framework of federal governance for the country. At the Oslo talks in December 2002, the LTTE agreed along with the government to explore a federal solution. The final statement signed at the close of that session of peace talks stated, Responding to a proposal by the leadership of the LTTE, the parties agreed to explore a solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-
speaking people based on a federal structure within a united Sri Lanka. The parties acknowledged that the solution has to be acceptable to all communities. 1 LTTE Proposal In the middle of 2003, with the peace talks suspended and the ceasefire deteriorating, the LTTE focused its attention on the production of its political proposals, holding a wide range of consultations with local and international experts in its capital of Kilinochchi and also in numerous foreign countries, including France, Northern Ireland, Denmark, Norway and Switzerland. The document they have produced can be considered to be a concise exposition of nationalist Tamil thinking over which there is the final authority of the LTTE. With its proposals for an Interim Self Governing Authority the LTTE gave concrete form to its expectations in a manner that was not incompatible with peaceful coexistence in a united Sri Lanka. 2 The LTTE recognised the right of the Sri Lankan government to appoint members to the ISGA, and did not challeng the right of the Sri Lankan security forces to be present in the north east. However, when it came to formulating their proposals for an interim solution, the LTTE made no reference to the Oslo agreement, or to federalism. The preamble to the LTTEs proposals, described as proposals on behalf of the Tamil people, also acknowledged with appreciation the services of the Norwegian government and the international community. The LTTE proposals called for the establishment of an Interim Self Governing Authority (ISGA) for the north east in which the LTTE would have an absolute majority of members. Thereafter the proposals indicated that complete autonomy was sought in virtually every aspect of the political and economic life of the people. There was no mention of the federal consensus arrived at by the government and LTTE during the Oslo peace talks in December 2002. Federalism means both self rule and shared rule. The LTTEs proposals focused on the self rule aspect alone.
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The LTTE proposals specified that separate institutions needed to be set up for the north east in respect of police, judiciary, elections, taxation, local and foreign grants and loans, and trade among others. There was an assurance that internationally mandated standards of human rights, accountability, multi-ethnic representation and free and fair elections will prevail. But all the institutions that were to be set up to ensure such good governance practices would be under the sole control of the ISGA which was to have an absolute LTTE majority. When viewed in the abstract the LTTEs ISGA proposals are separatist in orientation. For instance, they seek full judicial power over all matters that are subject to the ISGA. This would mean that LTTE courts replace the Sri Lankan judicial system even in government-controlled areas such as Jaffna, with no right of appeal from them. Such full power is also sought for coastal waters and resources. The ISGA proposals also do not mention which authority will have final decision making power in many crucial areas of governance, such as defence, foreign affairs and trade. It is noteworthy that the LTTEs proposals made no provision for integration with the nationally prevailing structures. Viewed in this context it is not surprising that the Sri Lankan governments response to the LTTE proposals was cautious and restrained. The governments immediate response was to say that there were fundamental differences between the LTTEs proposals and those submitted several months earlier by the government. Representatives of the Muslim community who had not been consulted in the design of the ISGA document saw it as an LTTE imposition and another example of Tamil insensitivity to the Muslim communitys separate identity. In its own proposals regarding an interim administration for the north east, the government specifically excluded matters pertaining to police, land, revenue and security from the purview of the interim administration. But in the LTTEs counter proposals, all the above with the exception of security are specifically considered to be the domain of the ISGA. Further, in the
governments proposals an absolute majority in the interim administration was conceded to the LTTE. But provision was made for a minority veto on matters that affected the interests of the Muslim and Sinhalese communities living in the north east. This provision was absent from the LTTEs proposal, which was also silent about how the minority communities in the north east could truly share power with the LTTE-appointed majority. On the ground the Muslims and Sinhalese of the east, who presently constitute over 60 percent of the population, strongly protested their inclusion into an LTTE dominated administration. The Muslims in particular were vociferous about their opposition, as in the Sri Lanka Muslim Congress they have a political party that draws virtually all its strength from the east. The SLMCs first response to the LTTEs proposals was to say that they did not meet Muslim aspirations. Self rule as proposed by the LTTE needed to be supplemented by shared rule, both by north east Tamil representatives at the central level, and by the Sri Lankan government at the regional level. Unfortunately,President Chandrika Kumaratunga seized on the opportunity to claim that national security was threatened by the LTTE proposal, dissolved the government of her rival, Prime Minister Ranil Wickremesinghe and called for fresh Parliamentary elections. At the election campaign that followed in April 2004, a nationalist Sinhalese campaign that denounced the Ceasefire Agreement as a capitulation to the LTTE, and as having set the stage for the LTTEs proposed ISGA, took the centre stage. It resulted in the routing of the former government and dampened the prospects for a negotiated peace agreement. Joint Mechanisms The fundamental weakness in the peace process was the failure to effectively negotiate an agreement on the political framework within which the peace process could be located. The failure to reach agreement on these parameters meant that both the government and LTTE had an incentive to strengthen themselves
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on the ground, so as to be in a stronger bargaining position in the future. The efforts of the government and LTTE to rearm themselves, upgrade their weaponry and to eliminate opponents, particularly on the part of the LTTE, could be attributed to this reason. In addition, the failure to agree on the parameters of a permanent solution also compromised the effort to set up an interim administration for the north east. It meant that the government and LTTE were attempting to come up with an interim settlement without a common vision of a final settlement. It also meant that the governments idea of an interim solution was anchored to its commitment to the centralised model of the unitary state, while the LTTEs idea of an interim solution was anchored in their ideal of separation. It required the tsunami of December 26, 2004 to break the political stalemate with regard to the situation in the north east. The tsunami took nearly 40,000 lives with most of the victims being in the north east sea coast. After protracted negotiations, the government under President Kumaratunga and LTTE agreed to set up a Post Tsunami Operational Management Structure, better known as the Joint Mechanism or by its abbreviation, PTOMS. The signing of the agreement in June 2005 heralded a possible new phase of the peace process. The agreement to establish PTOMS was designed to make the LTTE enter into partnership with the government in the area of economic reconstruction and development. The PTOMS agreement was primarily negotiated between the government and LTTE with the Norwegian facilitators playing only a secondary role. The PTOMS agreement demonstrated that even in a situation of armed hostilities, it was possible for the government and LTTE to reach agreement on very substantial matters if there was the necessary political will. What was significant about the PTOMS agreement was that it provided a possible model for a larger structure of governance
that could incorporate the entirety of the contested north east, and not just its tsunami-affected areas. It was a well crafted document with many safeguards and checks and balances in it. For instance, the one year term, two kilometer limit, minority veto and international monitoring provisions left little room for any dangerous abuse of the system. Another major achievement was the marked shift in the attitude of the LTTE itself that occurred in the course of the negotiations. A comparison of the PTOMS with that of the LTTEs proposed Interim Self Governing Authority (ISGA) proposal showed a significant difference. According to various statements made by the LTTE, they were prepared to be flexible because the joint mechanism dealt with humanitarian issues arising out of the tsunami tragedy. The LTTE drew a distinction between the joint mechanism and their yet unmet demand for an interim administration. Nevertheless, the LTTEs willingness to adopt a step-by-step approach to power sharing rather than a maximalist solution needed to be appreciated. The PTOMS mechanism also provided for safeguards within it for the Muslim and Sinhalese ethnic minorities in the north east. The powerful regional committee provided for ten members, five of whom were to be LTTE appointees, three Muslims and two Sinhalese. The first safeguard was that even two of the ten members in the joint mechanism at the regional, or north east, level could trigger off a minority safeguarding mechanism. If two of the ten felt that a particular decision was adverse to the interests of an ethnic minority, a simple majority would not suffice to ratify that decision. Instead seven out of ten, or more than two thirds of the members would have to give their assent to that decision for it to be operational. The second safeguard was that the joint mechanism at the district level would include observers from the international donor community. Their presence in the joint mechanism would help to ensure transparency and accountability as no international donor would wish its money to be used for secret or illegitimate purposes.
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There was also the likelihood that the World Bank, with its strict accountability and auditing criteria, was to be the custodian of the funds. It is tragic that political manoeuvering and ethnic prejudice should have led to the stalling of the PTOMS agreement. The agreement was challenged in the Supreme Court which delivered a judgment that was praised by Sinhalese nationalists who filed the action and that knocked the main substance out of it. Prime Minister Mahinda Rajapaksa, who went on to become the victorious candidate at the Presidential elections of November 2005 promised he would not implement the agreement if he was elected, which promise he kept. Being involved in the governance of an interim administration would have given the LTTE access to developmental resources and to formal engagement with international governments and aid agencies. The failure to successfully establish an interim administration, or even devise a substitute for it, such PTOMS, has meant that the LTTE was excluded from taking on formal responsibilities of governance in the north east for the entire duration of the peace process. End Piece Since the election of President Mahinda Rajapaksa in November 2005 the country has been in the throes of an undeclared war. It is a war that is undeclared because neither the government nor the LTTE are prepared to take responsibility before the people and the international community for starting the war. Indeed, at the initial stages of breakdown, both sides publicly denied responsibility for most of the acts of violence that they perpetrated against each other. Neither side has been prepared to formally denounce the Ceasefire Agreement of 2002. The renewal of conflict under the administration of President Rajapaksa makes any political settlement more difficult. The Sri Lankan armed forces have taken control of significant amounts of
territory that was hitherto controlled by the LTTE. Although the LTTE has been militarily weakened by internal splits and increased international pressure on its fund raising among the Tamil diaspora, it remains a formidable military force able to mount guerrilla attacks in different parts of the country and to launch conventional military attacks in the north. 3 The governments military strategy at the present time is to diminish LTTE power by eliminating its administrative presence and institutions wherever possible. The fierce military battles that have been taking place in the east, with little consideration of the civilian cost, is evidence for this strategy. There is reason to believe that the government will not be content with only clearing up the east, and that it will progressively seek to limit LTTE power in the north as well. The battles are taking longer than expected, but the general trend in these military confrontations has been favourable to the government. Simultaneously, the government has taken steps to develop a political framework for a political solution. But it is presently keeping this separate from its war strategy. During the Kumaratunga presidency there was much criticism that its two-pronged military and political approach was undermining each of the two prongs. It was said, for example, that the former governments propaganda about the desirability of a political solution discouraged military recruitment. Although President Rajapaksa has mandated the All Party Conference to work out a political solution to the ethnic conflict, this process is clearly subordinate to the military option at the present time. There are no governmental education programmes on a power sharing political solution, as there was during President Kumaratungas time. Right now, the Rajapaksa government does not appear to want a political solution that is acceptable to the forces of Tamil nationalism to undermine its military successes. The indications at present are that the war will continue with broad support from the majority of the population, in particular
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the Sinhalese majority. A Social Indicator poll conducted by the Centre for Policy Alternatives in early 2007 showed that more than half of the Sinhalese polled favour the military weakening of the LTTE, even though most of them also favour a political solution to the ethnic conflict.4 Tragically the war appears to have a beguiling allure to both the Rajapaksa government and to the LTTE. Those who support the governments military campaign believe that the government has to defeat the LTTE in order to defeat the threat of Tamil separatism. On the other hand, those who support the LTTEs military campaign would believe that the LTTE has to wrest Tamil rights, and Tamil territory, by force of arms away from the government. But both are dealing with symptoms, not the causes. The fact is that the ethnic conflict existed before the LTTE was formed or the Rajapaksa government came into power. The main argument against the notion of a military solution is that eradicating a symptom cannot end the cause of the problem. Even if the government were to defeat the LTTE on the battlefields of Sri Lanka, it will not be able to eradicate the Tamil nationalism. The desire of Tamil people to enjoy equal rights and to have real decision making power in Sri Lanka, whether in the north and east or in Colombo, is not limited to the LTTE-controlled Wanni. It exists in the same measure in other parts of the north and east, in Colombo and elsewhere in the country. In addition, there is a vast reservoir of Tamil nationalism in the Tamil expatriate community that lives abroad, that no amount of military solutions in Sri Lanka can ever hope to subdue. There is only one answer to Tamil nationalism and that is a just political solution that accords with universal human rights principles. Bibliography K.M. de Silva, Reaping the Whirlwind: Ethnic Conflict, Ethnic Politics in Sri Lanka. Penguin, India. 1998 Jane Russell, Communal Politics under the Donoughmore
Constitution 1931-47, Tissara Prakashakayo, 1982, P. 192 National Peace Council, Cost of the War, Colombo 2006 National Peace Council, Media Releases 1996-2005, Colombo 2006 International Alert, Sri Lanka: Emergency, London, 1986 Godfrey Gunatilleke, Negotiations for the Resolution of the Ethnic Conflict, Marga: Monograph Series on Ethnic Reconciliation, No 1, 2001 Kumar Rupesinghe (Ed), Negotiating Peace in Sri Lanka: Efforts, Failures and Lessons, International Alert, London, February 1998 International Crisis Group, Sri Lanka: The failure of the peace process, 28 November 2006 University Teachers for Human Rights (Jaffna) publications. Hubris and Humanitarian Catastrophe, Special Report No 22, 15 August 2006 Peace Confidence Index, Social Indicator, January 2007 The Island Newspaper The Daily Mirror newspaper www.peaceinsrilanka.org www.peace-srilanka.org www.tamil net.com
Notes
1
The website of the governments peace secretariat, www.peaceinsrilanka.org, contains the full texts of documents

2
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relating to the peace process. See www.tamilnet.com for LTTE documents 3 International Crisis Group, Sri Lanka: The failure of the peace process, 28 November 2006 4 Peace Confidence Index, Social Indicator, January 2007
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Thai Constitutional Development: National Infrastructures for Right to Self-Determination of People

Sukree Langputeh Prologue The paper envisages to investigate national constitutional development since Thai modern state has well embraced democratic notions of governance to be led by the PEOPLE, of the PEOPLE and for the PEOPLE in 1932. It is, however, interesting to note that since then until 2007 17 charters and constitutions have been drafted and implemented. Not the contents of these charters and constitutions that created national emotions but also how they were drafted have been more powerful to be claimed national democratic development, like the 16th 1997 constitutional drafting process that had gain great political momentum nationwide and called the most populous PEOPLEs constitution. It is really a civic constitution that has been paving the way for better and broader human rights issues to be infused and geared. This paper, then studies how this development plays the role of building national infrastructures for right to self-determination of people in Thailand.
This paper was presented at International Roundtable Conference on Right to Self-determination of Peoples jointly organized by Institute for Autonomy and Governance and Konrad Adenauer Stiftung at Asian Institute of Management Conference Center Makati City, Metro Manila, Philippines, July 16-18, 2007. Dean, Faculty of Liberal Arts & Social Sciences, and Board of Directors, Al-Salam Institute, Yala Islamic University, Pattani, Thailand.
Thai Constitutional Development: National Democratic Infrastructure The Constitution of the Kingdom of Thailand is the supreme law of the Kingdom of Thailand. Since the founding of the modern state in 1932, Thailand has had 17 charters and constitutions, reflecting the high degree of political instability and frequency of military coups faced by the nation. After successful coups, military regimes often abrogated existing constitutions and promulgated new ones. All of Thailands charters and constitutions have allowed a constitutional monarchy, but with widely differing balances of power between the branches of government. Most of them have stipulated parliamentary systems, however, several of them also called for dictatorships, e.g., the 1957 Charter. Both unicameral and bicameral parliaments have been used, and members of parliament have been both elected and appointed. The direct powers of the monarch have also varied considerably. This can be learnt through the nations 65 years democratization process with its 17th charters and constitutions as follows: 1. Temporary Charter for the Administration of Siam Act 1932 2. The Constitution of the Siam Kingdom 1932 3. The Constitution of the Kingdom of Thailand 1946 4. TheConstitution of the Kingdom of Thailand (Temporary) 1947 5. TheConstitution of the Kingdom of Thailand 1949 6. The Constitution of the Kingdom of Thailand 1932 (Revised 1952) 7. The Charter for the Administration of the Kingdom 1959 8. The Constitution of the Kingdom of Thailand 1968 9. The Temporary Charter for Administration of the Kingdom 1972 10. The Constitution for the Administration of the Kingdom 1974 11. The Constitution for Administration of the Kingdom 1976
Thai Constitutional Development: National Infrastructures for Right to Self-Determination of People [31]
12.The Charter for Administration of the Kingdom 1977 13. The Constitution of the Kingdom of Thailand 1978 14. The Charter for Administration of the Kingdom 1991 15. The Constitution of the Kingdom of Thailand 1991 16. The Constitution of the Kingdom of Thailand 1997 17. The Constitution of the Kingdom of Thailand (Interim) 2006 The last permanent constitution was promulgated in 1997. Called and acknowledge by all walks of lifves as the Peoples Constitution, it was considered a landmark in terms of the degree of public civic participation involved in its drafting as well as the democratic nature of its articles. It stipulated a bicameral legislature, both houses of which are elected. Many human rights are explicitly acknowledged, and measures were established to increase the stability of elected governments. However, following an army-led coup on 19 September 2006, this Constituton was abrogated. The junta ruled the country by martial law and executive decree for weeks, until it promulgated an interim constitution on 1 October 2006. The Interim Constitution allowed the junta to appoint a Prime Minister, legislature, and drafting committee for the next 18th permanent constitution. Human rights were broadly acknowledged, but junta censorship as well as bans against assembly and political activities were not repealed One might see that the great number of charters and constitutions is indicative of the degree of political instability Thailand has faced in its modern history. The majority of charters and constitutions were the direct or indirect result of military coups. Charters and constitutions for much of Thai history can be thought of, not as instruments of the people to control the government, but as instruments by which a government controls its people. These political parameters have been influenced by the political and military strength of the regime and the degree of support from the king and the palace. For instance, the 1959 Charter gave Sarit Dhanarajata absolute power over the executive and the legislature, which reflected the overwhelming strength with which he executed
a coup over Plaek Pibulsonggram as well as his strong support from the palace. Based on the degree by which the legislature is elected, Thailands 17 constitutions and charters can be categorized into 3 groups: 1. Elected legislatures: The legislature is completely elected. This included the 1946 Constitution (where the elected House selected the Senate) and the 1997 Constitution (where both the House and Senate are elected) 2. Appointed legislatures: The legislature is partly elected and partly appointed by the executive. The appointed members of the legislature are sufficient to limit the power of the elected representatives. The Prime Minister is either a military leader or a figurehead of the military or the palace. This includes the (after 1937), the 1947 Charter, the 1949 Constitution, the 1952 Constitution, the 1968 Constitution, the 1974 Constitution, the 1978 Constitution, and the 1991 Constitution 3. Absolute executives: The executive has absolute or near absolute power, with either no legislature or a completely appointed legislature. The Prime Minister is usually a military leader or a figurehead of the military or the palace. This includes the 1932 constitutions (before 1937), the 1959 Charter, the 1972 Charter, the 1976 Constitution, the 1991 Charter, and Thailands current charter, the 2006 Interim Charter. 1997 Peoples Constitution: Landmark for Political & National Human Rights Reforms The 1997 Constitution was widely hailed as a landmark in democratic political reform. Promulgated in 11 October 1997, it
was the first constitution to be drafted by an elected assembly, and hence was popularly called the Peoples Constitution. The 1997 Constitution has several innovations compared to previous constitutions, including: 1. Political Reform Voting was made compulsory in order to ensure highturn out reduce vote buying. A mixed electoral system based on Germanys was adopted for the House of Representatives. 100 members of the House are elected from party lists, and the remaining 400 are elected from single-member constituencies. MPs were required to have a bachelors degree. An independent Election Commission was established Strengthening the executive branch.[36] A 2/5s vote of the House was required for a vote of no confidence debate against a Prime Minister. A successful vote of no confidence required a majority of 1/2 of the House. Only 1/5th of the House was required for a no confidence motion against an individual Minister. These measures were aimed at increasing the stability of governments. Greater separation between the executive and legislative branches. MPs were forced to resign from the House in order to become Cabinet Ministers. Decentralization of government, including the establishment of elected Tambol Administrative Organizations (TAOs) and Provincial Administrative Organizations (PAOs). School administration was also decentralized.
2. Human Rights Reform A plethora of human rights were explicitly recognized, including the right to free education, the rights of traditional communities, and the right and
duty to peacefully protest coups and other extraconstitutional means of acquiring power. The right to protest coups was banned following the 2006 coup. Increased checks and balances, including new independent government agencies like the Constitutional Court, the Administrative Court, the Office of the Auditor-General, the National Counter Corruption Commission, the National Human Rights Commission, the Consumer s Protection Organization, the Environmental Conservation Organization, and an Ombudsman.
The matters with which we are most concerned form Chapter 3 of the 1997 Constitution on Right and Liberties of Thai People are mostly as follows; 1. Freedom of Communication (Article 37). This Article provides excellent public protection against censorship. It guarantees UNFETTERED COMMUNICATION by any means, INCLUDING THE INTERNET. This section MUST be retained and the specific consideration of the Internet added. ADD to this PRIVACY consideration that prohibits any individual, including those representing any greater body in government or the private sector, from retaining any records of any individuals Internet activity such as retention of searches and IP address logs, as at present. 2. Freedom of Expression (Article39). This section allows all persons in Thailand to express their opinions in all forms, both spoken and written. It is an excellent guarantee that all persons in Thailand have full access to all information, free of censorship. This section MUST be retained. It should be broadened to PROHIBIT ALL CENSORSHIP: no banned books. It should also provide
greater emphasis to the prohibition of government involvement in media ownership. 3. Free Public Expression (Article 41). Press and media freedom. 4. Academic Freedom (Article 42). This section should be broadened to PROHIBIT ALL CENSORSHIP of all academic discussion, whether oral or written. No banned books. 5. Freedom of Association (Article 45). MUST be retained. 6. Public Information (Article 58 and 59). Access by all persons to government will eliminate corruption, make politicians and bureaucrats accountable to the public and make government honest and transparent. information, explanation, reason MUST be retained. 7. Public Participation in Government (Article 60). MUST be retained for protection of the public from government secrecy. 8. Right to Petition (Article 61). All persons in Thailand must have the right to petition government for redress. Currently, the National Human Rights Commission of Thailand is only empowered to give recommendations to government with no enforcement powers in law. This allows government agencies and individuals to ignore both NHRCs requests for information and clarification and to ignore NHRCs final recommendations. We should give this section more teeth. 9. Right to Sue (Article 62). As a last resort, all persons in Thailand should be able to bring suit against any individual in government or any government agency for
redress. This section should also make provision that government will provide competent, legal counsel, as well as all court costs and fees, FOR FREE to anyone not able to pay. This will enable all persons, regardless of economic status to, have power in government. There may be some risk of spurious lawsuits but the civil protection thus afforded the public will be well worth this minimal risk. The Constitution was highly praised for the participative process involved in its drafting, its enshrinement of human rights, and its significant advances in political reform. It was viewed as successful in fostering democratic development and increasing political stability. Its measures to politically empower and protect citizens were also praised. The January 2001 House elections, the first House elections contested under the 1997 Constitution, were called the most open, corruption-free election in Thai history.[5] Political parties were effectively strengthened, and the effective number of parties in the legislature fell. However, most criticism was based on the perspective that the Constitution was too effective in some of its reforms. One of the members of the Drafting Committee, Amorn Chantarasomboon, claimed that an overly strong and stable government brought on a tyranny of the majority and a parliamentary dictatorship.[41] Following House elections in April 2006, the Election Commissioners were jailed and the election results overturned by the Constitunal Court. The constitution was also criticized for the lack of clarity with which it defines the Kings role in politics (see Royal powers and 2006 demand for royal intervention). The Senates role in scrutinizing Constitutional Court appointments came under much criticism (see Appointment of the first Constitutional Court). Although the Senate was supposed to be non-partisan, block-voting became common.[42][43] A constitutional crisis almost occurred
following April 2006 House elections (see April 2006 House election results). Governments were criticized for politicizing appointments to independent agencies. On the evening of 19 September 2006, less than a month before scheduled nation-wide House elections, the Thai military led a coup against the government of Thaksin Shinawatra. The military junta abrogated the 1997 Constitution, suspended the Parliament, banned demonstrations and political activities, censored the media, and dissolved the Constitutional Court, National Human Rights Commission and other agencies created by the 1997 Constitution. For the first weeks, the junta ruled by decree. As a result, International condemnation and several local protests against the coup were conducted, despite the juntas ban. In subsequent weeks, condemnation of the coup transformed into criticism of the junta-appointed government of General Surayud Chulanont and the constitution drafting process. 2006 Interim Constitution of Thailand: One or more Steps Back for Human Right Development in Thailand The 2006 Interim Charter of Thailand was drafted by the Council for Democratic Reform (CDR) after it seized power from the government of Thaksin Shinawatra in the 2006 Thailand coup. Released on 27 September 2006 and promulgated on 1 October 2006, the Constitution allowed the junta to retain significant control over the appointed civilian government and the drafting of a permanent constitution. The CDR would be transformed into a permanent Council for National Security (CNS) and would appoint the head of the executive branch, the entire legislature, and the drafters of a permanent constitution. The Constitution made no mention of succession, instead leaving it to constitutional practice. The draft came under strong public criticism as being a step backwards from the . The charter did not repeal junta bans restricting freedom of speech, assembly, and political activity. Although it was originally called a charter, it was officially named a constitution
The junta appointed a legal panel to draft an interim charter (later officially called a constitution). The team was led by former Senate speaker Meechai Ruchuphan, and originally included jurists Borwornsak Uwanno and Wissanu Krea-ngam. Both had played key roles in drafting the 1997 Constitution and had served under the deposed government, although they had resigned several months before the coup. Both resigned from the panel after public criticism that they were members of the ancien rgime. Thammasat University vice-rector Prinya Thewanaruemitkul harshly criticized the two, saying that they were not honourable enough to look after the democratic system. Both refused to play any further role with the military junta. The draft interim charter had 39 articles. Structurally, the draft interim charter was similar to the 1991 Constitution, the 1976 Constitution, and the 1959 Charter, in that it stipulated an extremely powerful executive branch which would appoint the entire legislature. Interesting articles of the charter to be noted are as follows: prescribes for the constitutional monarchy and the Kingdom of Thailand as the singular state (Art. 1) guarantees basic rights, human dignity and equality under the law in accordance with the democratic rule under the king as head of state and international obligations (Art. 3) outlines the formation and duties of the National Legislative Assembly, which will comprise 250 members appointed from professional groups, geographical areas and various sectors of society (Art. 5) allows the National Legislative Assembly to request the Cabinet to give statements of fact or explain problems, but explicitely states that it may not make a vote of confidence or no confidence against the Cabinet (Art. 11) grants immunity for remarks made on the floor (Art.13) allows the Chairman of the Council for National Security (the junta) to remove the Prime Minister (Art. 14)
guarantees the independence of the judiciary (Art. 18) spells out a process for drafting a permanent constitution. This includes the prohibitation of the 100 members of the Constitution Drafting Council from being current members of a political party or being members of a political party for the previous 2 years (Art. 19) empowers the Legislative Assembly speaker to chair the National Assembly (Art. 20) spells out the peer-vote of a 2,000 member National Assembly to elect 200 candidates for the Constitutional Drafting Council. Each member can vote for no more than three members, those nominated with the most votes will win. In the case of tied votes, which result in more than 200 winners, the winners will be decided by drawing lots. The peer-vote must complete in seven days (Art. 22) empowers the Council of National Security to pick 100 of 200 CDC candidates for royal approval (Art. 22) empowers the Council of National Security to appoint a 100 member CDC if the National Assembly fails to complete its selection within 7 days (Art. 23)
Future Trends: From Human Rights to Right to Selfdetermination of People in Thailand Members of the Human Rights Comission will be expected to have domestic laws in place to protect and uphold fundamental human rights, in accordance with international treaties. These must include constitutional provisions not only on some basic human rights issues in previous charters and constitution but this Commission should in turn play the role for initiating right to selfdetermination of the people in this nationor equivalentwhich are enforceable through legal actions by an ordinary person. National candidacy to the council must also be contingent upon it introducing a procedure through which appeals on the grounds of fundamental human rights and constitutional rights may be laid before the higher courts.
That people in Thailand be given a right of redress emanating directly from the constitution is an exceptionally important condition for Thailands acceptance into the Human Rights Commission. In recent weeks, the role of its courts has been spotlighted by a constitutional crisis caused by an unprecedented political impasse, itself provoked by a popular movement against the dominant political party. This situation has caused much greater awareness among the general public that the judiciary is by far the weakest leg of the Thai state. It is also a leg that is disinclined to stand on its own. Ultimately, this is a problem that returns to all of the conditions for Thailands acceptance to the Human Rights Council. Effective laws to eliminate torture and other gross human rights abuses, effective implementation of UN recommendations, guarantees of access to UN officials, and enforcement of constitutional rights all depend upon a strong judiciary which is worthy of public respect and willing to exercise its authority where and as necessary. In the end it is this principle of a powerful and independent judiciary to which Thailand must subscribe if it is to deserve its place on the Human Rights Commission. And for that reason, its candidature is most timely and should be the cause of lively discussion both in the UN system and in Thailand itself. The Asian Human Rights Commission urges the UN General Assembly to make Thailands candidature to the Human Rights Commision contingent upon these four conditions. It urges key agencies for the protection of human rights in Thailandespecially the National Human Rights Commission of Thailand, Lawyers Council of Thailand, concerned politicians and members of the judiciaryto enter into vigorous debate on the countrys human rights record and its proposed candidacy. Let this be an opportunity for open and frank discussion on the serious obstacles to the realising of human rights in Thailand at a critical time in its history. The AHRC sincerely hopes that the Human Rights Council will be a success and that it will augur in a new era of respect for, and protection of, human rights. The council faces many obstacles before this becomes a reality, and the election of members who
have demonstratednot merely pledged themselvesa genuine commitment to human rights is of the utmost importance. Epilogue It can be summed up that Thai national constitutional development has played vital role in shaping human right development of the country. How a country which never creates any majority-minority ethnic sentiment in all 17 charters and constitutions and it may include the 18th permanent constitution handle its people right to self-determination, especially for those who might or may see things differently form the mainstream conventional paradigm of citizenship
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The Struggle for Self-determination in Aceh

Ayesah Abubakar & Kamarulzaman Askandar* Introduction In the Southeast Asian region, self-determination or identity conflicts continue to develop and are actively being pursued by local and international actors towards the path of conflict resolution and peacebuilding. Among these are the cases of Pattani (Thailand) Mindanao (Philippines), and Aceh (Indonesia). In Aceh, the international community and the Acehnese people bear witness to the signing of the Memorandum of Understanding (MoU) in August 15, 2005 between the Government of Indonesia (GoI) and the Free Aceh Movement (GAM). This successful peace negotiation was mediated by the Crisis Management Institute (CMI) in Helsinki, Finland led by former Finnish President Maarthi Ahtissari. Under this Helsinki MoU, GAM accepted that the Province of Aceh remains within the unitary state of Indonesia but with the condition of achieving self-governance as a form of its self-determination aspirations. This paper shall explore the developments of the implementation of the peace agreement in Aceh. It will however, first look at the background of the Aceh conflict and the struggle for self determination in Aceh history. It will then discuss the new political arrangements between the GoI and the new Aceh government, and the postconflict developments and the dividends of peace that the Acehnese people currently experience.
*Research and Education for Peace, Universiti Sains Malaysia (REPUSM); Email: rep@usm.my. URL: www.seacsn.net
Background to the Aceh Conflict and the Struggle for Self Determination1 A brief exploration on Acehs history explains the mix of factors that led Aceh into a war of national liberation that became the struggle for self determination of the Acehnese people. Islam has also always featured prominently in the history of this struggle. According to historians, Islam first entered the Indonesian archipelago, and possibly all of Southeast Asia, through Aceh sometime around the year 700. The first Islamic kingdom, Perlak, was established in the year 804. Much later, in the sixteenth and seventeenth centuries, the port of Aceh became entangled, along with the rest of what is now Indonesia, in European colonial powers competition for worldwide political and economic dominance. Interested parties included the Portuguese, Spanish, Dutch, and British. For many centuries Aceh was a very distinct and influential political entity. The Sultan of Aceh and the Sultan of Malacca, were major controllers of trade through the Straits of Malacca. One of the most significant events in Acehs history came in 1824 with the signing of the London Treaty often referred to as the Anglo-Dutch treaty in which the Dutch gained control of all British possessions on the island of Sumatra including Aceh. Yet the Dutch colonialists failed to fully capture Aceh. Only after all the neighboring territory was conquered did they mount a final campaign to subdue Aceh. That war took them 35 years. The next major agreement was the Linggarjati Agreement mediated by Britain and signed by Indonesia and the Netherlands in March 1947. In this agreement, the Dutch recognized Indonesian sovereignty over the islands of Java, Sumatra, and Madura. Perhaps the most critical event in explaining the attitude of many Acehnese is the signing of the 1949 Round Table Conference Agreements. Brokered under the auspices of the United Nations, the agreements provided for a transfer of sovereignty between the territory of the Dutch East Indies and fully independent Indonesia. The Kingdom of Aceh was included in the agreements despite not having been formally incorporated into Dutch colonial possession. Subsequently the Indonesian government used armed troops to annex Aceh. Since the annexation, the Acehnese have continued to resent what they consider as foreign occupation and
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the struggle for self determination in Aceh has gone through several phases. It is important to look at these phases to truly understand the progression for self determination in Aceh, and how it has fluctuated between outright calls for independence and preserving the existing arrangements albeit with modifications. First phase. The precursor to Acehs independence movement began in 1953 when Indonesia experienced the Darul Islam rebellion, in which rebels on the major Indonesian island of Java tried to establish an Islamic state, supported by Muslim leaders in Aceh who had the same aspirations.. Many Acehnese leaders who had earlier participated so enthusiastically to gain independence for Indonesia from the Dutch during 1945-49 became very disappointed with the position of Aceh after independence. This was basically for two reasons. Firstly, because it became clear that the new republic would be ruled on the basis of the philosophy of Pancasila rather than Islam, and secondly because of the fusion of Aceh into the province of North Sumatra in 1950. Therefore, in 1953, many of the ulama and other leaders who had led the Acehnese during the 1945-49 periods led their followers into the Darul Islam (Abode of Islam) revolt. This revolution was aimed at establishing Aceh as an autonomous region within an Islamic Indonesia. They were quite explicit about these aims, declaring themselves part of the Negara Islam Indonesia (Indonesian Islamic State) earlier declared by Kartosuwirjo, another Darul Islam leader in West Java.2 This revolt continues to be important simply because the response of the Indonesian government since then has mostly been to address the demands of this revolt that is autonomy and the power to implement aspects of Syariah or Islamic law. For example, in 1959, the Indonesian government responded by giving Aceh the status of a special territory which ostensibly confers some degree of autonomy in religious, educational, and cultural matters. Second phase. Despite this status, in 1976 Aceh Merdeka (Free Aceh) was founded as an armed resistance group. This movement was formed by Hasan di Tiro, an Acehnese businessman and intellectual who had previously been an overseas representative of the Darul Islam movement. He was also a descendant of one of
the chief ulama leaders of the war against the Dutch. The demand of Aceh Merdeka was complete independence of Aceh, having seen how the previous demands made under the Darul Islam period had not been benefitted the Acehnese people. The group that started this movement was small, probably involving no more than two hundred active members moving around in the mountains of Aceh. It has however, support from a wider base, including villagers in the various provinces. It had few weapons and the authorities were able to suppress it quickly. In the late 1970s, Indonesian authorities conducted mass arrests of Aceh Merdeka members and shut down their activities until 1989. In that year, a group now also calling itself the Aceh-Sumatra National Liberation Front (ASNLF) came out of hibernation and vigorously renewed its quest for independence, often through attacks on police and military installations. This prompted the Indonesian military to strike back hard against the insurgents. In 1989, Indonesia designated Aceh a military operations area or DOM (Daerah Operasi Militer) giving the army a free rein to crush the separatists. In what became known as the DOM period, the Indonesian military resorted to all the tactics of a dirty counter-insurgency war. Torture, disappearances, rape, the deliberate display of corpses and many other techniques became common. Passive sympathizers as well as active supporters of GAM were affected, and many ordinary villagers also became victims. Amnesty International reported that between 1989 and 1992 about 2,000 people were killed in military operations in Aceh.3 In all about 12,000 people, mostly civilians, have either been killed or lost since fighting began. Although the military at times succeeded in suppressing the movement, they also ended up creating greater resentment in Acehnese society. This always led to a general escalation of the conflict situation. If we look at the progress of the conflict in Aceh, it can be concluded then that the conflict has escalated in two ways over the years. First of all, the attitudes of the Acehnese have been hardened. In the beginning, the chief demand was for autonomy and the implantation of the Syariah law. This later on become a demand for independence, spearheaded by the GAM. Secondly, we see an escalation in terms of popular support. This is especially so in the
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second phase of the conflict, the GAM period. The movement started out small with not much support in 1976, but by 1999, partly in response to the very policies that had been used to suppress the movement, it had become much larger. Disillusionment with Jakarta has enhanced this feeling and contributed too to the emergence of a nationalist sentiment. After the resignation of President Suharto in May 1998, Acehs independence movement experienced a major revival. The situation is now open enough to express unhappiness with the way Jakarta has been handling the Aceh conflict over the years. Revelations of past human rights abuses especially those done during the DOM period fuelled the demands for independence. This context saw the rise of a new peaceful referendum movement, which mobilized huge crowds throughout Aceh in November 1999. It also saw the resurrection of GAM, especially in rural Aceh. This new situation confronted the Indonesian government with major challenges. Successive governments responded with a mixture of concession and repression. This is the time that the government of Abdurrahman Wahid initiated a process of dialogue with GAM at the end of 1999, a process which persisted fitfully until mid-2003. On the other hand, military hard-liners favoured a repressive response. From late 1998, there were instances of severe repression against civilians. The Henri Dunant Center for Humanitarian Dialogue (HDC) was invited to act as a facilitator in this dialogue. The HDC was able to persuade the Indonesian government and GAM to sign on December 9, 2002 the Cessation of Hostilities Agreement (CoHA) which was then seen as an accord that could possibly end 26 years of rebellion. This agreement contained several important points, among others, the cessation of all violent actions and hostilities, establishment of a Joint Security Committee (JSC), the development of peace zones in the area, the implementation of an All Inclusive Dialogue (AID), and conducting the 2004 general election for democratic governance in Aceh. Compared to previous agreements, this December 9, 2002 one has larger expectations for developing peace in Aceh. This was because of three things, namely:
1. There are active international involvements from the initiation to the implementation processes. 2. There is a sanctioning mechanism for violation of the agreement. 3. There are reasonable stages for conflict resolution embedded within the agreement. The process begins with trust building, developing peace zones, demilitarisation, and continued with involving the civil society in formulating a political settlement. It ends with establishing a democratic government by general election. With these advantages, this agreement becomes a promising milestone toward sustainable peace in Aceh. It became possible when both sides agreed to compromise on key strategic goals. On the part of GAM, the demand for full independence was put aside for the time. The Indonesian government, on the other hand, agreed to foreign monitors, mostly military officials from Thailand and Philippines to supervise the ceasefire and the disarming of the GAM. This is a positive development because the Indonesian government has consistently refused to internationalize the conflict in Aceh. The central government also passed special autonomy legislation which gave the Acehnese a larger share of natural resource revenues, the right to implement aspects of Islamic law, plus other concessions. Nevertheless the peace process suffered some setbacks after sporadic acts of ceasefire violations done by both sides despite the presence of the HDC, the international monitors, and the newly created Joint Security Council (JSC). These violations reflected the need for more continuous conflict prevention and peace-building efforts as well as independent monitoring activities by international organizations especially the UN. Things got from bad to worse from here. Abdurrahman Wahid was removed as president and replaced by Megawati Sukarnoputri. Despite promising that she would resolve the Acehnese conflict and not allowing a single drop of Acehnese blood to spill, the conflict continues to rage on. Megawati was in fact weak and was in a position where she was forced to
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appease the powerful armed forces in order to gain their support in parliament. Third phase. In May 2003, Martial Law was implemented again in Aceh which effectively killed off any advances made in the peacebuilding efforts of the previous years. The GAM negotiators were arrested on their way to Tokyo for negotiations and more than 30,000 troops were sent to suppress the separatists within a span of a few days in May 2003. However, martial law was removed after a year, replaced with a civil emergency, but without any major improvement on the ground. This emergency status was also removed in May 2005, but again with no improvement in the situation in Aceh. The current president, Susilo Bambang Yudhoyono, promised during the run up to the presidential election that he will end the Acehnese conflict within three years of taking power. At the end of 2004, Aceh was once again hit with a major calamity, this time a natural one. The tsunami of December 26, 2004 resulted in the death of more than 150,000 Acehnese with tens of thousands more missing. It brought the attention of the world to Aceh and ignited again the sparks for peace between the warring parties, this time pushed by humanitarian concerns and the need to set aside the confrontations and help the victims. Both armed parties quickly call for ceasefire in the area and there were positive feelers from both sides resulting in meetings in Helsinki, Finland, facilitated by the Crisis Management Initiative (CMI) foundation, an organization led by former Finnish president Maarti Ahtisaari. After a slow start, the talk then progressed well. There were several rounds of talks in Helsinki: the first on 28 29 January, 2005, the second 21 23 February, 2005, the third between 12 16 April, 2005, the fourth 26 31 May, 2005, and the fifth 12 17 July, 2005. In the beginning, the government said that it is offering special autonomy status and amnesty for GAM separatists, but has stated that it would reject any demand for Acehs sovereignty.4 However, by the third round, the process is well on the way. Negotiators from both sides have been able to push aside hard-line positions, and to explore new solutions.
The process took a turn for the positive in the fifth round when it was agreed that an agreement will be signed on August 15, 2005. This Memorandum of Understanding (MoU) was made possible by a few factors the first being the realization that both sides need to put aside their differences to rebuild, reconstruct, and rehabilitate Aceh after the devastating tsunami. This was the premise of the whole peace process. This also helped the sides overcome any major hurdles and barriers in reaching an agreement. Provisions were made for the decommissioning of the troops the pullout of non-organic Indonesian forces, numbering about 23,000 soldiers, amnesty for GAM soldiers who can now go back to their old lives, and the surrender and destruction of GAM weapons. What was more difficult was the question of GAMs role in the post-conflict situation. At the outset, GAM agreed not to continue pushing for independence, albeit putting a condition that it and any other Acehnese groups wishing to do so can be allowed to set up local political parties as vehicles to run in local elections. The breakthrough came when the Indonesian government side agreed to this request, although it did come across initial oppositions from its own parliamentarians and other political parties in the country. Indonesian law also stipulated that only nationwide Jakarta-based parties are allowed, making it difficult for local parties from Aceh to participate in purely local politics. This was remedied by simply pushing through the agreement with an understanding that a solution for this will be found later, possibly through the amendment of the special autonomy law for Aceh allowing local political parties to be created only in Aceh. Provisions were also made for the monitoring of the peace process, involving monitors from the EU and ASEAN countries. GAMs Self-Governance The Helsinki peace negotiation was conducted in the context in which all actors and stakeholders realized the gravity of the tsunami devastation in Aceh and its urgent need for rehabilitation and development. In spite of earlier initiatives of bringing back the Government of Indonesia (GoI) and the Free Aceh Movement (GAM) to the negotiating table, it was the tsunami event that gave
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a stronger push for these two actors to come together to conflict mediation and eventually sign a peace agreement. The larger international community closely watched on the fate of the Acehnese who have not only become victims of the 30 year old conflict but also of the tsunami destruction. During the peace negotiations, there were three proposals discussed, mainly: the option for full independence from Indonesia; the GoI offer for GAM to become a national party; and the granting of a special autonomy within which local Aceh based parties are also created.5 Consequently, it was the third proposal that prevailed. This, however, was substantiated further with the concept of selfgovernance as a defining option for GAMs pursuit of selfdetermination. This self-governance was translated into a new law governing Aceh as the implementing mechanism of the MoU. The MoU included arrangements on human rights, amnesty to all political prisoners, reintegration of GAM, and security arrangements that withdraws the presence of the non-organic military contingents in Aceh, and its use solely for external defense. Most importantly, as a critical element of the continuing peace process, the MoU stipulates the establishment of an Aceh Monitoring Mission (AMM) and a dispute settlement mechanism which ensures the commitment of the third party facilitators and mediators like the CMI, the EU, and others to the peace process. Acehs peace agreement evolved into the Law on Governing Aceh (LoGA). There were three drafts of the LoGA done and participated by the Acehnese civil society. These, however, were consolidated into one Aceh draft. It is this draft that was submitted to the Indonesian Parliament. The LoGA was passed successfully into law but with several issues from the MoU remaining to be unclear and unfulfilled. Some of which are those that pertain to authoritywhether it duly resides within the Aceh government or in conjunction with the National Government; the setting up of the Human Rights Court; and other economic governance issues. On the other hand, among the highlights in the LoGA were: 1) the institutionalization of Acehnese cultural, religious identity and symbols like its own flag, crest, and hymn;
2)
3)
4) 5)
the creation of a Wali Nanggroe Aceh or the Aceh traditional leader representative with a role to play in ceremonial duties and other customary functions; the usage of the traditional Qanun law as a local government legislation the 70-80% allocation of Acehs natural resources to be maintained by the local government; the local governments right to raise taxes; and the setting up of a Special Autonomy Fund for Aceh which is provided for by the national government that will start in 2008 at an additional 2 percent of the DAU for 15 years, and after which there will be an additional 1 percent in the succeeding 5 years6 the ruling of an autonomous local government mandated to manage Acehs resources, and conduct various functions, however, with limitations on issues that carry a national character, pertaining to foreign affairs, defense, security justice, monetary affairs, national fiscal affairs, and certain functions in the area of religion the setting up of a Syariah court and rule of law the participation of locally based political parties and independent candidates in the (recent) December 2006 election; participation of election monitors and technical assistance that will come from outside of Aceh.
In the full implementation of the new Aceh law, the local parliament is tasked to draw up at least 90 Qanuns or provincial laws. The Election Law passed in 2006 became the first Qanun which led to the December elections. Therefore, this local legislation is key in defining the terms of reference and guidelines in realizing the agreements within the MoU and the LoGA. And this is where the Acehnese society has become actively involved and empowered to an extent. Civil society groups maintains its support in terms of technical know how and lobbying initiatives to this local legislation.
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MoU Implementation and the AMM As soon as the Helsinki Memorandum of Understanding was signed, the Aceh Monitoring Mission was fully deployed as soon as September 15, 2005 to oversee the implementation process. This as a result of the European Unions support to the Crisis Management Initiative (CMI) as the peace mediator. Therefore, EU was a major (financial) contributor in this effort. The AMM composition was led by the European Union member countries with participation from several ASEAN countries, namely Philippines, Malaysia, Thailand, Brunei, and Singapore. Its membership total of 226 staff were posted in 11 areas across Aceh. This civilian peacekeeping mission was tasked to monitor the demobilization of GAM and decommissioning of its ammunitions, relocation of nonorganic military and police forces from Aceh, human rights situation, legislation process; rule on disputed cases; investigate and rule on violations to the MoU; and build on good relationships with the parties. Generally, the strong presence and visibility of the AMM in Aceh has paved a more open and engaging environment for the international community who are working in Aceh. The new environment is most especially felt by the civil society groups and local communities who are currently enjoying a sense of freedom in their own homeland. It is this freedom (of physically mobility and socio-economic opportunities among others) that ordinary Acehnese can tangibly equate their struggle for self-determination. The AMM completed its work up until the successful elections held in December 2006. It has witnessed the overwhelming win of GAM leader Irwandi Yusof as the new governor and the transition to a new leadership in Acehs politics. With the exit of the AMM, the role of postconflict monitoring is currently being filled in by groups like FORBES or the Joint Aceh Forum participated by the conflict parties and members of the international donor community, and the upcoming INTERPEACE which will be another European Union-led group (within the same network of the CMI) to be based in Aceh.
Conclusions: Aceh Self-Determination and Sustainable Peace It can be concluded that the story of Aceh has taken on a new twist after the tsunami of 2004. In the aftermath of the tsunami, both sides really wanted peace, having seen the futility of continuing the armed struggle when there are other more immediate concerns to be addressed. It can also be concluded, however, that the notion of self determination for the Acehnese people remains strong today. This can be seen from the details of the MoU signed and the subsequent protests on details of the LoGA. After having struggled for many years to protect and promote their own identity and interests, and after having experimented with pushing for various forms of self determination outputs ranging from independence, autonomy, self governance, and a mix of all three, they do not want their struggles to be in vain. At the same time, there is also a general fatigue for war, and to this author at least, a sincerity in wanting peace. This push for peace remains today, although as in all peace processes extreme caution will have to be taken. The period then between end of the tsunami, the signing of the MoU in 2005, and the general election in 2009 is crucial. A quick look at some measures taken during this period to ensure the momentum for peace should show us how crucial this period is. These are the Badan Rehabilitasi dan Rekonstruksi (the Body for Rehabilitation and Reconstruction or BRR), the Badan Reintegrasi Aceh (the Body for Aceh Reintegration or BRA), and the local provincial elections (Pilkada) in December 2006, The BRR was created by the Indonesian government for Aceh (later to include Nias) rehabilitation in the aftermath of the tsunami and natural disasters. The mandate for BRR was for rebuilding Acehs destroyed infrastructure and helping the victims of the disasters. It was crucial that although the head of the BRR was from outside Aceh, the other positions within the BRR were taken up by Acehnese including former GAM combatants. The second highest ranking BRR official, for example, is Teuku Kamarulzaman, the former GAM negotiator, imprisoned during martial law in Aceh in 2003. He is responsible, among other things, to bring in GAM people into the BRR and to ensure that the
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rehabilitation process is not Jakarta dominated. It is important that the Acehnese themselves be involved in the rehabilitation work as this would not result in them feeling like they were being alienated and discriminated by Jakarta. With so many GAM connected people within BRR, this too is giving GAM a sense of responsibility to the BRR and the rehabilitation process. They need to be involved and be seen by the Acehenese and the outside world to be involved. Their struggle for independence has been about the ability to decide their own future and the rehabilitation of the very area that they were fighting for is crucial to this struggle. The effectiveness of the BRR in doing its work, however, is something else that can be debated in another forum. The BRA was specifically created to help in the reintegration process of former GAM combatants back into society. Under the peace process, this was recognized as a crucial element as thousands of former combatants with little or nothing to do can be destabilizing to the process. The numbers of active members to be reintegrated and rehabilitated have fluctuated between 5000 to 25,000 (depending on who is doing the numbering as well as when compensation is involved). Already there were voices of dissent in regards to the compensation as the combatants are claiming that the amount is not enough, while non-combatants are asking why they are left out in the compensation process as they too have been victims of the conflict. This is especially in the middle of the Aceh province to the east Aceh areas, conflict affected areas not affected by the tsunami. In the tsunami areas, everybody gets housing and other types of compensation irregardless of whether they are GAM members of not, but in the non-tsunami affected areas, only former combatants are helped. There also some overlapping BRR and BRA areas, especially in Aceh Besar and North Aceh that have made both the rehabilitation and reintegration work difficult. On another note, there have also been some dissatisfaction regarding the allocation of compensation and reintegration money to former combatants. There have been claims that the compensation given was not what was originally promised. For example, if a person is supposed to get Rupiah 25 million each, he gets only Rupiah 5 million, or less. There have also been rumours of dissatisfaction
among the GAM rank and file with the way the GAM leadership is benefiting from the general the post conflict and post tsunami reconstruction. Many of them have now become rich overnight by being contractors, government officials working with the BRR and BRA, and other types of employment, while the majority of the rank and file continues to live in poverty and hardship. All these are things that might hamper the post conflict peace process and should be looked at. The local elections or Pilkada was held at the end of 2006. It signified a few important points. First, this election saw the involvement for the first time of independent candidates for the various posts. Second, the election also saw GAM candidates running for the various posts for the first time, although as independent candidates and not formally under the GAM, which was yet to set up its own party by that time. Third, as candidates, some former GAM officials were in fact running against each other. The race for the position of Governor of Aceh, for example, saw Irwandi Yusuf, the former GAM spokesperson teaming up with M. Nazar, the head of SIRA (central body for referendum information), against Humam Hamid from the PPP (the development party) and Hasbi Abdullah, a former GAM elite. The Irwandy-Nazar team won, by securing 38% of the votes in contrast to 16% for the latter. This shows two things. One that GAM is embracing this political process enthusiastically and shows that they are willing to stick with this democratic political struggle. To many observers, this signals their acceptance of the fact that they are still part of Indonesia and a formal end to their former demand for independence. Second, that more than half of the votes went to former GAM leaders, showing the strong support that GAM has among the constituencies. This experiment is important for GAM to gauge their strength in the run up to the forthcoming general election in 2009, when the GAM party (officially launched on 7th July 2007) will be putting candidates in its first election and with the hope to secure power in Aceh through the balloting box. While there were some apprehensions in Jakarta that GAM was reasserting its pro-independence stance at the launch of the
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GAM party, namely because of the use of the GAM flag and other GAM symbols, these actions should not be read in the wrong way. GAM argued that they need symbols that the Acehenese voters can recognized with. That their struggle is political in nature and Jakarta should not fear that they will revert back to their arms struggle for independence. These statements should allay Jakartas fear. The real true measure for self determination would be the ability to sustain this momentum for peace. And this momentum in turn would rely on the actors involved being true to their words for Jakarta to guarantee the implementation of measures under the Hensinki MoU and the LoGA; and for GAM to ensure their democratic participation in the political process. Both sides have to remember too that in the end the people will be the judge as to where they want to go. The political process can go either way and any eventual results should be respected. It is significant that GAM sanctioned candidates won more than 50% of the votes in the local elections last December, with most votes coming from the rural areas from Pidie to East Aceh. If they ultimately win the majority of the seats in the 2009 general election, they will then have to perform. Otherwise, they will run the risk of being voted out in the subsequent election which is always possible in any democratic process. They will also have to take into account other locally based political parties, some of which have been created i.e. the civil society headed Partai Rakyat Aceh (PRA or Aceh Peoples Party), and the rightwing Islamic party, GAPTHAT (formed by former GAM clerics). GAM itself will have to transform as a body as their struggle has been transformed. Otherwise they will become irrelevant and will not be able to say that they truly represent the Acehnese people. In the end, this is the true measure of self determination as determined by the people. Notes 1 This part is adapted with permission from the paper by Kamarulzaman Askandar on The Aceh Conflict and the Roles of Civil Society, presented at the Seminar on Self Determination in Southeast Asia, Center for Peace and Conflict Research, Uppsala University, Sweden, May 2005.
2
On the Darul Islam revolt in Aceh, see Sjamsuddin, The
Republican Revolt (Singapore: ISEAS, 1985)

3
See The Manila Times, December 14, 2002 Jakarta Post, Talk with GAM tough, but government to see it through, January 30, 2005 Under the Indonesian electoral system, candidates for provincial government posts have to stand in under national based parties. Therefore, if GAM wants to set-up local parties in Aceh, this has to be amended in the Constitution. This DAU is an optional grant given by the national government to the regional governments in Indonesia aimed at improving their fiscal capacity and services delivery to its constituencies.
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European Experiences in Accommodating Ethnic/ National Differences

Gabriel Munuera Vials1 Political Counselor, EC Delegation to the Philippines* Introduction and Preliminary Caveats The starting premise for this paper is two-fold. On the one hand, the existence of groups within European States thinking of themselves as distinct from the rest of the country and demanding the recognition of that fact and the accommodation of that distinctiveness by their States. On the other hand, the wealth of experience accumulated in Europe through its often tortured history in coping with what many have termed the national problem and in trying to find peaceful ways to accommodate ethnic/national differences. Being this subject a most politically sensitive one, certainly in many European countries including EU Members States, a few clarifications or caveats appear in order: This paper will not be entering into a theoretical debate over the concept right of self determination, including the definition of the self or the meaning of determination. The definitions that I will be using below (nation/nationality, indigenous people, national minority) are meant to offer some practical guidance for the presentation of cases. The categories mentioned (cultural and territorial autonomy, federal/confederal schemes) aim to facilitate
* This paper does not represent official policy of the European Commission or the European Union. The views presented are only those of the author.
a better understanding of the many formulas used to accommodate ethnic/national differences. This paper attempts to be an overview of salient European experiences in this field. As such, and given the space constraints of this exercise, the paper will be neither be completely exhaustive nor will it be exploring in great detail each one of the cases presented. The use of the two adjectives, ethnic and national, is deliberate and again not scientifically-aspiring but rather driven by practical explanatory considerations. In some of the cases described below there is an element of ethnicity (including distinct physical characteristics denoting a common genetic pool) while in others the rallying point of distinctiveness would rather be either cultural/ linguistic or religious (or both). The focus2 of this paper is on EU Member States and other European states, such as those in the Western Balkans, which have a perspective of accession to the EU and where the EU is helping find formulas to accommodate ethnic/national differences. Lastly, I will only be presenting formulas that are being applied with a measure of success. I will thus refrain from commenting on the Cyprus or Kosovo cases, as the search for lasting solutions continues there. Definitions3 As indicated above, for practical, presentational purposes, I will be using the following categories or definitions in this paper: Nation/Nationality4 an ethnically, linguistically, or otherwise homogeneous group demanding political power over a territory considered their actual or ancestral land, with the ultimate aim among some or many of its members of creating a State [the nation-state]. I will not delve in the often delicate semantic debate on concepts such as nation and nationality. I believe that the general sense is sufficiently clear.
European Experiences in Accommodating Ethnic/National Differences [61]
National Minority a numerically smaller, non-dominant group distinguished by shared ethnic, racial, religious or linguistic attributes linked to a larger mother nation (often nation-state) to which some or many of its members feel they belong and which some or many would ultimately wish to join. Indigenous Peoples (a) Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; or (b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. The Context: A multi-ethnic/national Europe In Europe at present the following ethnic/national realities may be found: State-less nations/nationalities5 perceived as such by many of their members and generally acknowledged, at least as a well identified, culturally in a broad sense distinct groups by the States in which they exist. This category would include the Basques, Catalonians, Galicians in Spain; the Scots and Welsh in the UK; the Brittons, Corsicans and also Basques in France; and the Flemish and Wallons in Belgium. National minorities would include German speakers in South Tyrol (Italy); Swedes in Finland; Hungarians in Romania, Slovakia and Serbia; Russians in the Baltic Republics; Albanians in the Former Yugoslav Republic Of Macedonia FYROM) and Serbia; Serbs in Croatia; Turks in Bulgaria; Thrace Muslims in Greece; and German speakers in Belgium.
There are not many Indigenous Peoples still distinctly present in EU Member States these days. European nations do have at their roots ethnic or tribal groups (Germanic, Celtic, Iberian, Illirian), which have been diluted through a long historical process of interaction with other groups or that have evolved into modern societies where the main source of allegiance is not to the clan or tribe but to the class or nation. There is still one group, however, that considers itself an indigenous people and is officially acknowledged as such by the countries within which it exists, the Sami or Lapp. Another possible case would be the Greenlandic people, although this category strictly speaking covers two ethnic groups, the Inuit and White Scandinavians born in Greenland. There is also a category that I would term special cases, including the Roma/Sinti (close to a national minority but being very diverse and scattered throughout Europe); Northern Ireland, which some would consider a case of uncompleted de-colonisation of the Irish nation with a Bristish national minority whereas others would speak of an Irish national minority within a portion of the British nation; Kosovo, where some talk of a Kosovar nation while others point at an Albanian national minority within Serbia; Bosnia Herzegovina, a three-national state or the nation-state of the Bosniaks with Croatian and Serbian national minorities?; Cyprus, a bi-national state or a Cypriot nation (or part of the Greek one) with a Turkish national minority?; and Switzerland, with its unique historical process resulting in a confederation of cantons with four constituent peoples (German, French, Italian and Romanche-speaking). Historic background of the national issue in Europe Key milestones in the tortured history of Europe resulting in the national issue (the ethnic/national differences and claims requiring accommodation) would include: the birth of the modern nation-state following the French revolution in the late XVIII Century, replacing either Aristocratic multi-ethnic States/Empires (Hasburg, Tsarist, Ottoman) or absolutist yet often no less multiethnic States (Bourbon regimes in France or Spain) in Europe; the
German and Italian unifications in the second half of the XIX Century, providing a boost to national aspirations of various groups throughout the continent; eventually triggering the implosion of the Austro-Hungarian and Ottoman Empires as a result of the first Balkan Wars and WWI; and, later on, the implosion of former Yugoslavia (triggering what has been called the second Balkan Wars) and the Soviet Union in the 1990s. The main drivers (historical, political, economic) underpinning, justifying and ultimately resulting in the national issue would comprise: the cultural/literary movement of Romanticism and the spread of the Nationalism ideology during the XIX Century, resulting in political nationalist movements/parties springing up throughout Europe in the late XIX Century; the emergence of national bourgeoisies basing their wealth on trade and industry (rather than on land like the Ancient Regime aristocracy) and demanding political power to match their economic might; and the building of nation-states via universal conscription, modern state bureaucracies and universal education (often resulting in the suppression of minority groups within each nation-state). Formulas to accommodate ethnic/national differences Many formulas have been tried through the years in Europe, at various levels (national as wellas regional) and with different degrees of success. They may be categorised as follows: Measures of cultural autonomy aimed at accommodating fragile indigenous peoples and national minorities, such as the Sami in Lappland, Greenlandics in Greenland or German speakers in Sud Tyrol. Schemes of Territorial autonomy aimed at accommodating nations/nationalities within existing States. That would apply to Scotland or the Basque Country among the cases presented below, but also to Catalonia, Galicia or Wales.
Federal/Confederal frameworks aimed at accommodating several peoples/nations coexisting in a State. Belgium presently reflects the federal model while Bosnia-Herzegovina has confederate traits partly inspired in the example of Switzerland. Mixed frameworks, such as the formula used in FYROM combining elements of territorial and cultural autonomy to accommodate its Albanian minority, or the special case of Northern Ireland, mixing elements from all the categories above.
The following is a very succinct overview of some of these cases, with a focus on the key traits of the formulas tried with at least partial success to accommodate national/ethnic differences and claims. National level Finland/Norway/Sweden Sami/Lapps
The some 85,000 Samis are an indigenous people inhabiting the northern part of Scandinavia and Kola Peninsula (Lappland) and speaking Finno-Ugric languages, traditionally nomadic and historically under pressure from dominant majorities. The recognition of their uniqueness gradually came in second half of the XX Century. Such recognition is mainly expressed through the Sami Parliaments, entailing an element of cultural autonomy related to the preservation, protection and promotion of Sami culture and traditions. These Parliaments are elected by Samis, based on criteria combining self-identification, language proficiency and ancestry (a father or grandfather who spoke Sami). Sami Parliaments were established in Norway in 1989, in Finland in 1996 and in Sweden in 1993.
Denmark (Greenland)
Greenlandics
Greenland was settled by Danish Vikings and Inuits in the XI Century. This ethnic mix produced the Greenlandic people, with Inuit and Scandinavian components and accounting for 87% of a total population of some 55,000. Greenland was incorporated to the Danish crown in 1380. During the following centuries it was governed in a rather autonomous manner, given the distance to Denmark. A Commission was established in 1975 to consider expanding its self-rule, resulting in the 1979 Greenland Home Rule Act approved by the Danish Parliament (the Folketing). The Home Rule Act established a 27-member Landsting (Parliament) and a Landsstyre (Executive Council) headed by Lagmadure (Prime Minister). The Act devolved full administrative responsibility for Greenlands internal affairs (taxation, fisheries, planning, cultural affairs, nature conservation, education, religious affairs, social welfare and labour), preserving Danish Government authority over foreign affairs, defence and the right of appeal to Danemarks High Court. As per the Home Act, the official language of Greenland is the Greenlandic or Inuktitut (Inuit family) with Danish as communication language. Italy German speakers in Sud Tyrol
The area called Sud Tyrol in North-Eastern Italy was part of the Habsburg Empire from the XIII Century until WWI, when it was ceded to Italy through the Treaty of St. Germain-en-Laye (1919). In 1910 the region had an 89% German speaking population. Italy promised to safeguard the identity of the linguistic minority, but a policy of cultural assimilation was implemented under the Fascist regime of Mussolini (1922 1943). After WWII an Agreement on Self-Government of South Tyrol was negotiated, leading to the First Statute of Autonomy in 1948, which included in the same region (Trentino-Alto Adige/Sud Tyrol) the Italian-speaking province of Trentino. A difficult coexistence between the two linguistic communities ensued, resulting in clashes in the following years, to
the point that Austria brought the matter to the UN in the 1960s. A compromise was reached, the 1969 Package, leading to the New Statute of Autonomy in 1972, which provided a lasting solution to the issue. In 1992 Austria and Italy jointly declared before UN that conflict had been settled. The latest revision of the Statute was conducted in 2001. The Statute, an integral part of the Italian Constitution, provides a measure of autonomy to both Trentino and Sud-Tyrol, with provincial powers on the regulation of small holdings, crafts and handicrafts, public housing, fairs and markets, prevention of disasters, mining, hunting and fishing, alpine pastures, transport, tourism, agriculture and forestry, public welfare, and restricted powers on teaching in first and secondary schools, trade and commerce, health and sports. In addition, the province of Sud Tyrol has special provisions on language (strict official bilingualism and trilingualism in Ladin-speaking areas), schools and culture; a proportionality principle in public employment (which has to reflect the relative strengths of the three linguistic communities); and budgetary freedom on its expenditures (it can keep up to 90% of tax revenue collected by the State in the province), but few powers on taxation. The Region (Trentino-Sud Tyrol) was also vested with some, more modest, powers, including the regulation of regional offices, municipal boundaries, land registers, fire services, health bodies and Chambers of Commerce. France Corsica
The island of Corsica was under Genoese domination from 1284 until 1768 when the city-state sold its claim to France. By then Genoa did not have full control on the island; a Corsican Republic (1755) had been proclaimed under the leadership of local hero Pasquali Paoli. His republican forces were defeated by the French Army in 1979, yet a long-standing nationalist movement sprang up in Corsica, which in more recent times resulted in a violent struggle by some pro-independence movements. Since 1991 Corsica has been a Territorial Collectivity with two departments, an elected Assembly, an Executive Council and an Economic, Social and
Cultural Council. Its devolved powers were reinforced in 2002, including school curriculum focused on the promotion of the Corsican language in schools, sports and popular culture, tourism, the management of local forests, the management of ports and airports, hydroelectric power, local industry aid and culture; plus shared competences on environment, agriculture, fisheries and archeological/historical patrimony. A Plan for greater autonomy (merging two departments, ensuring greater protection for the Corsican language) failed in a referendum held in 2003. Former Yugoslav Republic of Macedonia (FYROM) minority Albanian
In the context of the dismemberment of former Yugoslavia in the early 1990s, FIROM declared its independence in 1991. A peaceful secession followed for a newly independent country with a Slavic majority and an Albanian minority (25% according to 2002 census), concentrated in the North and East of the country, the areas adjacent to Albania and to the mainly Albanian-populated Serbian province of Kosovo. In 1999 the crisis in Kosovo resulted in a large inflow of Kosovo Albanians into FYROM, which had partly fed or resulted in a short-lived conflict in 2001, when Albanian rebels demanded enlarged self-rule (or even independence) for areas where Albanians were in the majority. The crisis was solved with EU mediation via the Lake Ohrid Agreement, which included provisions on: the rejection of violence; the unity of the State; enhanced competences and resources for the 78 municipalities (on urban/rural planning, environment, local finances, education, health care, social welfare, culture, and local police, whose head would be chosen by local councils); non discrimination and equitable representation of the various communities in public office, including the Constitutional Court, the Ombudsman and the Judicial Council; qualified majority ensuring the accord of non-Macedonian representatives for certain constitutional amendments and laws on local government, education and culture; Macedonian as the official language throughout the country and for international relations, but any language spoken by
at least 20% would also be official, in education (primary, secondary, with support for teaching in that language at University level), the administration and the judiciary. Spain The Basque Country within the State of the Autonomies
After centuries of struggle between a decentralised past (the Germanic/Visigoth, Moorish and Christian polities spanning a millennium between the Roman Empire and the creation of the Spanish State in the early XVI Century, followed by the Habsburgs/ Austrias dynasty in the XVI-XVIII Centuries) and not fully successful centralising attempts by the Bourbon dynasty since 1713 and the Franco dictatorship over half of the XX Century, the 1978 Constitution (Art. 2) recognised the right to autonomy of the nationalities and regions which make up the Spanish State. That right was articulated through Statutes of Autonomy, whereby certain competences from the central Government were devolved to 17 autonomous regions to a varying degree depending on the history (traditional rights going back to the Middle-Ages) and the strength of the national sentiment. In the case of the Basques, a self-perceived nation/nationality with a very strong identity and distinct history, albeit not of a separate Basque polity (Basque provinces in Spain being part of the crown of Castilla in the Middle Ages, while partly Basque Navarra evolved into a separate kingdom until the early XVI Century), the Fueros (self-rule statutes) linking the Basque provinces and Navarra to the Spanish Crown were largely suppressed by the Bourbons in XVIII Century, partly fuelling the Carlist wars in the XIX Century. The spreading of the nationalism ideology throughout Europe in the XIX Century also reached the Basque Country, resulting in the creation of the Basque Nationalist Party in 1895 to further the cause of Basque identity and self-rule. The first Statute of Autonomy, approved in 1937 during the Spanish Civil War, was followed by Francos repression, the emergence of a Basque radical nationalist movement and the terrorist organisation ETA in the 1960s, the democratic transition and the
1978 Constitution, paving the way for the Estatuto de Gernika (1979). The Estatuto established the Basque Autonomous Community (including the three Basque provinces and opening the possibility for Navarra to join later), placed the Euskera/Basque language on a co-official level with Spanish/Castillian, established Autonomous Institutions (Parliament, Government and the preexisting Juntas/Diputaciones Forales) and granted these exclusive competences (notably education, health) and mixed ones, including tax collection except Customs, the Judiciary with a right to appeal to Spanish Supreme Court, plus law and order (except for borders), with some legislative capacity to legislate in those areas. The Autonomous Government has been controlled by moderate nationalist parties since its inception, yet ETAs terrorism has not disappeared despite several attempts to find a negotiated solution. United Kingdom Scotland
Scotland became part of the United Kingdom through the Act of Union in 1707, although it retained a separate legal and education systems, home rule in respect to local government and the separate Church of Scotland. A strong sense of nationhood has persisted trough the years, although there has been no significant violence involved in the Scottish nationalist aspirations in the XX Century. The nationalist cause has been embodied politically in recent times by the Scottish Nationalist Party. The Referendums Act of 1997 paved the way for the devolution of powers to Wales and Scotland. The 1998 Scotland Act established a Scottish Parliament and a First Minister, with responsibility for health, education, local government, social work, economic development, law and home affairs (including most civil and criminal law as well as criminal justice), environment, agriculture, sports and statistics. The Scottish Parliament was granted limited power to vary the income tax. The (UK) Secretary of State of Scotland keeps powers relating to foreign policy, defence and national security, economic stability, common markets of UK goods, employment legislation, social security and most aspects of transport safety regulations. The pro-independence Scottish
Nationalist Party won at the 2007 polls, possibly indicating an increase in support for additional self-rule. Finland Aland Islands
The over 6,000 Aland Islands straddling the Baltic Sea between Sweden and Finland have historically been culturally/ ethnically Swedish, yet they were ceded by Sweden to Russia via the Treaty of Fredrikshamn (1809), were incorporated in the Tsarist Grand Duchy of Finland but were then denied self-determination in 1917. Sweden challenged that and the issue was successfully settled by the League of Nations in 1920. In that year the Finnish Parliament approved the Law of Self-Administration of Aland, making it the first autonomous territory in Europe. That Law was renamed Autonomy Act in 1951 and has been revised several times ever since, the last time in 1991. The Autonomy Act provides for a Ladsting legislating in all matters affecting the islands, including culture, health, education, housing and social welfare, public order, and with the exception of constitutional law, foreign relations, general taxes and payments, criminal and most civil law, judiciary, social insurance and transport. The Lasting can propose legislation to the Finnish Parliament on matters concerning the islands, also on areas reserved to the federal government. There is an Aland Executive Authority and a Chief Minister, plus a Governor representing the Finnish President and an Aland Island Commission. The Aland Executive Authority can levy taxes on income while the national authorities levy national taxes and customs on Aland, 0.45% of which stay in the islands. Swedish is the only official language and there is an Aland citizenship (applying to Aland traditional residents or non-Aland Finns residing there for 5 years); non-Aland citizens may be denied the right to purchase land or exercise commercial activity, yet Aland citizens are also Finnish citizens, can participate in Finnish politics but are exempted from military service. The Aland Islands is a member of the Nordic Council since 1975 and has a special regime within the EU (it is not party to the Customs Union and can opt out of single EU regulations).
Belgium
Flemish, Wallons and German speakers
Belgium emerged as an independent country in 1830 with two large Dutch and French speaking communities and a small German speaking group. In the XIX and much the XX Century Belgiums political and economic scene was dominated by a Frenchspeaking elite, mainly from the then industrial/mining powerhouse of Wallonia. The situation changed in the second half of the XX Century with Dutch-speaking Flanders gradually gaining economic prominence and the Flemish asserting their rights in the face of past perceived discrimination (it was only in 1967 that a Dutch/ Flemish version of the constitution was adopted). Constitutional reforms in the 1970s and 1980s resulted in a three-tiered federation, with federal, regional (Flanders, Wallonia, Brussels-Capital Region) and linguistic community (Flemish/Dutchspeaking, French/French-speaking and German-speaking) levels. The Flemish region and linguistic community were merged in 1980, while Brussels pertains to both the Flemish and French linguistic communities and the German speaking community is physically located within Wallonia. The Federal Government has exclusive responsibility for justice, defence, federal police, social security, nuclear energy, public debt and other aspects of public finances and State-owned companies, plus substantial parts of public health, home affairs and foreign affairs. The regions have authority over the economy, employment, agriculture, water policy, housing, public works, energy, transport, the environment, town and country planning, credit and foreign trade. For their part, the linguistic communities are responsible for culture, education, linguistic policy, health and social assistance (welfare, youth and assistance to immigrants). There is some inevitable overlap among the various levels, which are involved in international relations associated with their respective powers. While this very intricate formula has provided a measure of satisfaction to Belgiums very distinct communities, pressure for further devolution of power has not abated.
United Kingdom
Northern Ireland
Following the long English/UK domination of Ireland (going back to the XII Century) and the Irish War of Independence (191619201), the Government of Ireland Act (1920) established a twostate solution (the Irish Free State later the Republic of Ireland and Northern Ireland, comprising six northern counties with a Protestant majority), recognised by the Anglo-Irish Treaty of 1921. Northern Ireland chose to stay as part of UK, under Protestant (Unionist) control and a measure of home rule. Perceived discrimination of the Catholic (also called Nationalist or Republican) minority triggered civil rights protests in the 1960s. The situation deteriorated in the early 1970s resulting in The Troubles, a period of violence waged by various paramilitary actors (the Irish Republican Army or IRA and Protestant Paramilitaries). Northern Irelands home rule was suspended in 1972. After two failed attempts at negotiating peace (1974 Sunningdale Agreement, 1985 Anglo-Irish Agreement) and in the context of an IRA cease-fire, the 1998 Good Friday Agreement: committed all parties to peaceful means; stipulated that the constitutional future of Northern Ireland would be determined by majority of its citizens; established a Northern Ireland Assembly with devolved powers education, health and agriculture with policing possible in future-, a cross community principle for major decisions; established a power sharing Northern Ireland Executive with Ministers allocated proportionally to major parties; established a North-South Ministerial Council and North-South Implementation Bodies on cross border cooperation, a British-Irish Intergovernmental Conference (giving a consultative role to EIRE on non devolved matters) and a British-Irish Council (EIRE, Ulster, UK, Channel Islands and Isle of Man) to discuss areas of common concern; provided for the early release within two years of paramilitary members of organisations observing the ceasefire; created the Northern Ireland Human Rights Commission; stipulated a two-year decommissioning period for paramilitary formations; enshrined Londons commitment to repeal the Government of Ireland Act and Dublins to delete the territorial claim to Northern
Ireland from the constitution of the Republic of Ireland; provided for the closure of redundant UK army bases, as well as the reform of the previously Protestant-dominated Police; established the equality of social, economic and cultural rights for all ethnic communities (including the official recognition of the Irish and Ulster-Scots languages as equal to English); established the birthright of all people of Northern Ireland to identify themselves and be accepted as Irish or British, or both (with the right to hold both British and Irish citizenship). After an often difficult transition period, during which steps forward (the Royal Ulster Constabulary was replaced by the Police Service of Northern Ireland in 2001) coexisted with setbacks (IRAs reluctance to disarm, leading to the temporary freezing of devolution), on 28 July 2005 IRA announced the end of its armed struggle, on 25 September 2005 international inspectors certified the full decommissioning of IRA arms and home rule resumed on 8 May 2007 under a power sharing agreement between Sinn Fein and the Democratic Ulster Party, long the political embodiment of radically different views on Northern Ireland. Bosnia-Herzegovina A mixed Ottoman/Hasburg past resulted in three ethnic groups inhabiting Bosnia-Herzegovina (BH), Croats, Serbs and Muslim Slavs converted to Islam during the Ottoman domination. Following the secession of Croatia and Slovenia from Yugoslavia in 1991, a referendum was held in BH in March 1992, won by proindependence proponents but largely boycotted by the Serbs. BHs declaration of independence triggered a three-year civil war, pitching Serbs aided by units of the former Yugoslav National Army that had become the Army of the Republica Srpska against Croats and Muslims. The 1994 creation of the Bosniak-Croat Federation of BH and NATOs military intervention against the Serbs paved the way for the 1995 Dayton Peace Accords, whereby: BH is composed of three Constituent Peoples (Croats, Bosniaks and Serbs), two Entities
(Federation of BH, comprising ten Cantons, and the Republica Srpska), the special district of Brcko (held in condominium by the two Entities), 74 municipalities and 4 cities; the Entities and Cantons have their own government and parliaments and control their own budget, with responsibility for finances, taxation infrastructure, health care and education, business development and general legislation; a rotating Presidency (Bosniak, Serb, Croat) is elected directly by the people, conducts foreign policy and commands the armed forces; the Presidency nominates the Chair of the Council of Ministers, with responsibility for defence, intelligence, foreign policy, foreign trade policy, customs policy, monetary policy, finances of the federal institutions, immigration, inter-Entity criminal law enforcement and regulation of inter-Entity transportation; a Parliament Assembly with two Houses (of the Peoples 5 Croats, 5 Bosniaks and 5 Serbs and of Representatives 42 members, 2/3 from the Federation and 1/3 from the Republica Srpska) is vested with the power to adopt the budget of federal institutions; several unifying institutions were also created, including a Constitutional Court (4 members from the House Rep., 2 from the Republica Srpska and 3 nominated by the President of the European Court of Human Rights), a single Military, a single Indirect Taxation Authority (enforcing a unified VAT) and a State Customs Service; last, but certainly not least, a High Representative appointed by the Peace Implementation Council/Steering Board (Canada, France, Germany, Italy, Japan, Russia, UK, US, EU, EC, and OIC) that can (and has on occasion) bypass Parliament and remove elected officials. Regional level Europe harbouring the worlds most elaborate institutional set up, it was only logical that a number of instruments and mechanism would be created to facilitate the peaceful accommodation of ethnic/national differences in the continent. In a very schematic manner, the range of such instruments, bodies and mechanisms would include:
European Union o The Committee of the Regions, a consultative body on EU legislation, composed of representatives from regions of EU Member States. o The 1992 Copenhaguen Criteria for accession to the Union, including the respect for and protection of national minority groups. o The 2001 Charter of Fundamental Rights, soon to become part of the Unions legislative body or acquis, which enshrines the right to non discrimination on ethnic, linguistic or religious grounds and rights to respect for ethnic, linguistic or religious diversity. o The 1997 Amsterdam Treaty, also known as Treaty of the European Community, whose Art. 13 empowers the European Union to take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. o EC instruments, such as: Directives 2000/48/EC and 2000/78/EC prohibiting the direct or indirect discrimination on grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. The Action Programme to Combat Discrimination (2001-2006) The PROGRESS Programme (2004) Community Programme for Employment and Social Solidarity The High Level Advisory Group on Social Integration of Ethnic Minorities and their Full Participation in the Labour Markets (2006) Organisation for Security and Cooperation in Europe (OSCE) o The High Commissioner for National Minorities, a position created in 1992 to monitor the situation of national minorities
in OSCE Member States, conduct discreet diplomacy and issue Thematic recommendations (such as those on education and linguistic rights, participation in public life, or Roma/Sinti). o The Copenhagen Document (adopted at the 1990 Meeting of the Conference on the Human Dimension) requires participating States to take measures to respect the rights of persons belonging to national minorities to effective participation in public affairsprotect the ethnic, cultural, linguistic and religious identity of national minorities on their territory and create conditions for the promotion of that identity, and specifically to protect Roma and others against any acts that constitute incitement to violence and against threats or acts of discrimination, hostility or violence o A Contact Point for Roma and Sinti Issues in the Office for Democratic Institutions and Human Rights, created in 1998. Council of Europe o The Framework Convention for the Protection of National Minorities (1994), with provisions on non discrimination; promotion of effective equality; promotion of conditions regarding the preservation of religion, language and traditions; freedoms of assembly, association, expression, thought, conscience and religion; access to and use of media; linguistic freedoms (use minority language in private and public and before administrative authorities); learning and instruction in minority language; trans-frontier contacts and cooperation; participation in economic, cultural and social life of country; participation in public life; and prohibition of forced assimilation. An Advisory Committee monitors compliance with the Convention. Several of these provisions are also included in the more general European Convention on Human Rights, where alleged violations may be subject to individual complaints before the European Court on Human Rights.
Have these formulas accommodated ethnic/national differences in Europe? The limited evidence presented and the much larger evidence available at present would point at a mixed record. In some cases existing mechanisms seem to have adequately, lastingly and peacefully accommodated ethnic/national differences, while in others, tension and even violence continues. More specifically, cultural autonomy and local (municipal, provincial) self-rule have proved to be appropriate instruments for addressing the perceived discrimination of national minorities, but are probably insufficient when dealing with territory-based selfperceived nations/nationalities. In those cases, a measure of territorial autonomy may prove necessary, yet that is no panacea, working best when the ultimate goal of the minority group (or at least of some of its political leaders) is not secession. In fact, territorial autonomy may even have contributed in some instances to the polarization of these communities, when nationalist parties controlling the autonomous regional bodies have utilized these (in particular control over public education, the regional civil service and regional grants/subsidies) to build (or complete the building of) distinct nations ultimately aspiring to independence, sometimes against the wishes of significant portions of what usually are mixed/plural/multi-identity communities. Beyond specific formulas, a general context of economic development and rising wealth has definitely help soften the edges of the ethnic/national issue in the most prosperous parts of Europe. Bearing this in mind, perhaps the best way forward in accommodating ethnic/national differences may rest in the combination of a political culture of dialogue and compromise, economic policies promoting equitable and non-discriminatory development, education policies promoting multi-cultural, multiidentity values and institutional arrangements tailored to the specificities of each particular situation.
The search for workable formulas continues. As some would put it, perhaps ethnic/national differences cannot be solved, they can only be managed. In a way that is what the European Union has been doing for fifty years; we talk until we think we cannot talk any more, and then we keep talking. That may be the best, the only way forward. Manila, 29 July 2007
Paper based on a presentation made at the Conference on the Right of Self-Determination of Peoples co-sponsored by the Institute for Autonomy and Governance and the Konrad Adenauer Stiftung and held at the AIM on 16-18 July 2007. 2 In the broad geographic definition of Europe, other cases/ formulas would include autonomous regions or constituent federal entities in the Russian Federation (Tatarstan, Chechnya and other North Caucasus regions), Ukraine (Crimea), Georgia (Abkhazia, South Ossetia, Adjaria) and Azerbaijan (NagornoKarabah). 3 From Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights, Hurst Hannum, UPP, Rev. Ed. 1996, and UN Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 1989. 4 The two terms are often used in European countries to refer to the same reality. 5 There are other distinct groups whose categorization as standalone state-less nations would be more debatable, including Sardinians, Valle dAostans, Friulians, Sicilians, Valencians, Balears, Alsacians, Frisians, Manx, Cornish or Bavarians. There are also regions, often geographically separated from the States mainland, which enjoy a measure of self-rule in Europe (Azores Islands, Madeira, Faroe Islands) but which do not entail an element of ethnic/national difference.
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Bangsamoro Self-determination 1
Abhoud Syed M. Lingga2 This paper explores the idea that recognition of the fundamental right of peoples to self-determination opens a window of opportunity to resolve conflicts peacefully, whether or not they are explicitly stated as a struggle for self-determination. This is particularly true in Mindanao, where the Bangsamoro liberation fronts assert sovereign rights in the same territory over which the Philippine government already exercises sovereign power. Implementing the right of self-determination of the Bangsamoro people can usher in peace in Mindanao. Self-determination as a Right
The r ight to self-determination is the right of peoples everywhere to freely determine their political status, and to freely pursue their economic, social and cultural development. The right to self-determination has political, economic, social and cultural aspects. For this right to be fully effective, the realization of the political, economic, social and cultural sovereignty of peoples is crucial.
Self-determination is a continuing process where people continue to make choices to achieve human security and to fulfill human needs.
This paper was prepared for presentation during the International Roundtable Conference on Right to Self-determination of Peoples, July 16-18, 2007 in Makati City, Metro Manila, Philippines. 2 The author is Executive Director of the Institute of Bangsamoro Studies based in Cotabato City, Philippines. He can be contacted in this email address: aslingga@yahoo.com.
The right of peoples to self-determination is enshrined in many United Nations instruments, among which are: General Assembly resolution 1514 (XV) of 14 December 1960, which states that, All peoples have the right to selfdetermination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 55 of the United Nations charter, which provides that the world body shall create conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples . . . Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and repeated in Article 1 of the International Covenant on Civil and Political Rights (ICCPR), which makes this statement: All peoples have the right of self-determination, including the right to determine their political status and freely pursue their economic, social and cultural development.
On the other hand, there are U.N. instruments that uphold the principle of territorial integrity of existing states. Whether people who claim right to self-determination and are living within the boundary of existing states are prohibited to disrupt the territorial integrity of a country is not clear in the U.N. Resolutions. The assertion of minorities to self-determination is usually not only a claim to determine the political status of a people but also includes a claim to territory. If minorities are defined as people and they decided to form their own states, this will result to dismemberment of existing states. Article 2 (4) of the U.N. charter provides, All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state . . . This provision, unmistakably, applies only as between
Bangsamoro Self-determination
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states. It prohibits member states from using force to threaten the political independence and territorial integrity of any state. United Nations General Assembly Resolution No. 2625 (Declaration of Principles Concerning Friendly Relations among States) advised that right of self-determination shall not be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. However, this U.N. Resolution reiterating the territorial integrity of states is made contingent on the government being representative of the whole people and non-discriminatory. There is substantial debate as to the scope of a government representing the whole people. Hannun, for example, is for the limited requirement of non-discrimination only on the grounds of race, creed or colour. But Buchheit sees it simply as a component of a larger theory based on the premise that oppression legitimizes secession. Other commentators, like Musgrave (1997: 209), interpreted Resolution No. 2625 as implying that international law permits secession as a legal remedy in certain circumstances. He also contends that secession is also permissible by virtue of the oppression theory when part of a population suffers gross oppression: in these circumstances secession is permitted primarily to prevent the abuse of human rights. In Allen Buchanans remedial right theory of secession, separation would be acceptable if there are systematic violations of human rights or unjust annexation of territories.
There are attempts to resolve the conflict between demands for self-determination and the principle of the territorial integrity of states. Hannun puts forward the idea of autonomy as a lessthan-sovereign self-determination. Musgrave says that Some jurists contend that autonomy is not a principle of international law but a matter which falls within the domestic jurisdiction of a state. He opines that autonomy within an independent state cannot be part of self-determination for the purposes of international law. My problem in comprehending many formulations on the right to self-determination is it is being equated to secession. In making decision as to their political status, people may opt for separation from the parent state but it is not always the case. Consequently, the assertions of a people to exercise their right to collectively determine their political status are always clouded by fear of states that their boundaries will be reconfigured once right of self-determination is granted to peoples even if they are entitled to it. The essential issue, which is the right of a people to choose their political status, and decide on their economic, social and cultural development, is placed at the margin. Holders of the Right of Self-determination According to the Report of the International Conference of Experts organized by UNESCO on November 21-27, 1998, the holder of the right of self-determination are a people (a group of individual human beings) who have some or all of the following common features: (1) common historical tradition; (2) racial or ethnic identity; (3) cultural homogeneity; (4) linguistic unity; (5) religious or ideological affinity; (6) territorial connection; and (7) common economic life. (Van Walt van Praag and Seroo 1999) Additionally, the UNESCO experts stated that the group as a whole must have the will to be identified as a people or the consciousness of being a people. The people, according to the experts, must be of a certain number, which need not be large but must be more than a mere association of individuals within a state.
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The existence of institutions or other means of expressing its common characteristics and will for identity is also important. Bangsamoro Right to Self-determination The Bangsamoro people qualify as people who hold the right of self-determination because they have a common historical tradition and religious affinity and share many cultural practices. They occupy contiguous territory (maritime societies are connected by the sea) with rich natural resources. Before the arrival of the Spanish colonialists, the Bangsamoro were already in the process of state formation, while Luzon and the Visayas were still in the barangay stage of political development. The Bangsamoro had their own government and engaged in trade and diplomatic relations with other countries. They had developed well-organized administrative and political systems; and strong maritime and infantry forces that defended the Bangsamoro territories from Western colonial intrusion, preserving the continuity of their independence. During the American occupation the Bangsamoro homeland was administered separately from the Philippines. When the U.S. later decided to grant independence to the Philippines, Bangsamoro leaders asked Washington not to include the Bangsamoro territories in the would-be Philippine Republic. Even when their territories were made part of the Philippines in 1946, the Bangsamoro people continued to assert their right to independence Other than their historical experience in state formation, Bangsamoro liberation movements and peoples movements cite the discrimination and oppression experienced by the Bangsamoro people under the Republic of the Philippines as justifications of their claim for self-determination. Often alluded to are the biases and prejudices of the majority population towards the Bangsamoro people; the minoritization of the Bangsamoro people in their own homeland due government policies; government neglect; and failure
of the government to protect the persons and properties of the Bangsamoro people. Whether the Bangsamoro people are entitled to selfdetermination or not is no longer debatable for the Government of the Republic of the Philippines (GRP) recognizes that. This was clear in one of the provisions of the Tripoli Agreement of Peace of 2001 between the GRP and the MILF, which states that the observance of international humanitarian law and respect for internationally recognized human rights instruments and the protection of evacuees and displaced persons in the conduct of their relations reinforce the Bangsamoro peoples fundamental right to determine their own future and political status. (Underscoring supplies) The recognition of the Bangsamoro right to selfdetermination was affirmed by Secretary Silvestre C. Afable, Jr., Chairman of the Government Peace Negotiating Panel in the talks with the MILF, in his letter to Mohagher Iqbal, Chairman of the MILF Peace Negotiating Panel, dated November 9, 2006, which states that the GRP would like to explore with the MILF in the next round of talks, the grant of self-determination and self-rule to the Bangsamoro people based on an Organic Charter to be drafted by representatives of the Bangsamoro people. In Tokyo last May 2007, he again reiterated the Philippine government position: On the negotiating table, we have offered a political settlement based on self-determination that strives to unify the Bangsamoro people rather than divide them, for them to finally live in a homeland rather than a rented territory paid for in blood and suffering. We are crossing bridges of understanding that others have never ventured to do in the past. (Quoted in Abinales) Now the issue at hand is the implementation of the Bangsamoro right of self-determination that it can lead to a democratic and peaceful resolution of the conflict between the Philippine government and the Bangsamoro people.
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Determination of Political Status The core issue in the right to self-determination is determination of a people political status. How is the political status of a people determined? The UNESCO experts are of the opinion that a people should be able to achieve self-determination through a fully participatory and democratic process. The experts said: Selfdetermination is achieved by fully participatory democratic processes among the people who are seeking the realization of selfdetermination, including referenda where appropriate. (Van Walt
van Praag and Seroo 1999)
To determine the wishes of the Bangsamoro people as to their political status, referendum has to be resorted to. This is also the position of the government. The above cited letter of Secretary Afable stated further that the Bangsamoro people shall decide on their political status in a referendum to be held after certain period. What are the choices are not clear as of this writing. To avert the worry of some that the referendum may turn into an all-out, winnertake-all contest the range of choices should include all possible political arrangements, such as independence, autonomy, free association, consociational arrangement, federal arrangement, and other power sharing arrangements. In order for a referendum to be participatory and democratic process, it is useful to be preceded by lengthy political debate and dialogue within the given communities to ensure that citizens are aware of what the options are, are fully informed about their implications, and are as ready as possible to vote in a referendum. In Southern Sudan, the referendum will take place after the interim period of six years. The referendum on Bougainvilles future political status will be held not earlier than ten years but not later than fifteen years after the signing of the agreement. In the case of the Bangsamoro, I agree with the recommendations of the Bangsamoro Peoples Consultative Assembly and the Mindanao Peoples Peace Movement that the referendum shall be held not earlier than five years but not more
than ten years after decision is made to give enough time for people to understand the pros and the cons of every proposition, and to provide the Philippine government time to demonstrate to the Bangsamoro people once again that they will be in better condition if they remain part of the Philippines. Considering the bad experiences we always have in Philippine elections, the referendum will be credible if supervised by third party from the international community. The third party can be the United Nations, European Community, Organization of Islamic Conference (OIC), or joint efforts of the Association of Southeast Asian Nations (ASEAN) and other multilateral groupings. Before a referendum will be held, the issue of territory has to be resolved by the GRP and MILF negotiating panels because the area where referendum has to be conducted has to be definite. Likewise, the two panels have to decide on the mechanism on how to conduct the exercise that it has to be democratic and participatory. The political, economic and cultural arrangements during the interim period preceding the referendum have to be agreed by the GRP and MILF peace panels as well. On the participation of the Indigenous Peoples of Mindanao, the principle of free choice that was earlier agreed by the two parties has to apply. Opportunity for Peace Allowing people to enjoy the right to self-determination does not automatically result in the separation of the claimed territory from the parent state, as feared by those who put a high value on the sanctity of borders, although this may be one of the possible consequences. Referendum on Puerto Ricos political status was held in 1967 but 60% of the voters preferred continued commonwealth status. Leaders of the province of Nivis wanted to separate from the federation of St. Kitts and Nivis but the citizens of the province voted to stay with the federation. Although not binding, the two referenda in Quebec illustrated that referendum does not inevitably translate to separation. On the contrary, denying a people the opportunity to exercise this right, or failing to make
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available the mechanism to exercise the right to self-determination, will make peaceful resolution of armed conflicts more difficult. Many of the conflicts today are taking place within and across states and the roots of many of these intra-state conflicts can be traced to the denial of state authorities of their citizens assertion that they have a right to self-determination. (Harris and Reilly 2003) Since undeniably the Mindanao problem is rooted in the Bangsamoro aspiration for self-determination, the implementation of this fundamental right of peoples to determine their political status will certainly open the window of opportunity to resolve the longdrawn conflict peacefully. As signatory to United Nations instruments on right to self-determination, the Philippines has the obligation to uphold, respect and promote this right. Constitutional and institutional barriers cannot be made the excuse to deny the Bangsamoro people this right. Sudan has amended its constitution to give way to a referendum in the South, and Papua New Guinea has promised to move amendments to the National Constitution to guarantee a referendum on Bougainvilles future political status when it signed the Bougainville Peace Agreement in 2001. The opinion of the UNESCO experts that the peaceful implementation of the right to self-determination in its broad sense is a key contribution to the prevention and resolution of conflicts, especially those which involve contending interests of existing states and peoples, including indigenous peoples, and minority communities is a wisdom that has to be seriously considered.
Bibliography Abinales, PN. 2007. The Separatist: Yong Afable. Mindanews, May 21. Also in Philippines Free Press, May 15. Buchanan, Allen. 2003. Secession, Stanford Encyclopedia of Philosophy, (http://plato.stanford.edu/entries/secession/index.html); Hannun, Hurst. 1990. Autonomy, Sovereignty and Self-
Determination. Philadelphia: University of Pennsylvania Press. Harris, Peter and Ben Reilly, eds. 2003. Democracy and DeepRooted Conflict: Options for Negotiators. Stockholm, Sweden: International Institute for Democracy and Electoral Assistance. Lingga, Abhoud Syed M. 2004. Understanding Bangsamoro Independence as a Mode of SelfDetermination. Mindanao Journal XXVII, pp. 3-12. Musgrave, Thomas D. 1997. Self-Determination and National Minorities. Oxford: Oxford University Press. Patten, Alan. 2002. Democratic Secession from a Multinational State. Ethics 112: 558586 Van Walt van Praag, Michael C. and Onno Seroo, eds. 1999. The Implementation of the Right to Self- determination as a Contribution to Conflict Prevention. Report of the International Conference of Experts held in Barcelona on November 21-27, 1998, organized by the UNESCO Division of Human Rights, Democracy and Peace and the UNESCO Centre of Catalonia.

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