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Max Planck Encyclopedia of Public International Law [MPEPIL]

Autonomy

Markku Suksi

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 13 November 2019

Subject(s):
Indigenous peoples — Sovereignty — Recognition of states — Self-determination — Secession

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Notion

1.  General Remarks

In the context of public international law, autonomy is connected to statehood and independence. An entity which has statehood and independence is a subject of public international law (Subjects of International Law) in its capacity of a State, while an entity which is autonomous does not possess such subjectivity or does so only to a very limited extent, as allowed under the subjectivity of such a State within which the autonomous entity exists. The issue of autonomy is thus corollary to the issue of sovereignty and independence, indicating a dependency of some sort, which at the outset maintains the external sovereignty of the State in which the autonomous entity is situated, but permits the division of the internal sovereignty of the State, for instance, through the sharing of legislative competence between the legislative body of the State, on the one hand, and the legislative body of a sub-State entity, on the other.

An autonomy is a territorially circumscribed singular entity in what otherwise would be a unitary State, introducing thereby an asymmetrical feature in the State, through transfer of exclusive law-making powers on the basis of provisions, which often are of a special nature, so that the State level remains with the residual powers, while the sub-State level relies on enumerated powers. At the same time, the State level contains no institutional representation of the sub-State entity. Furthermore, in relation to the most developed forms of territorial autonomy, the State level does not rely on a doctrine of pre-emption or supremacy to make possible the exercise of law-making powers of the State within the jurisdiction of the sub-State entity. In addition to territorial autonomies, other forms of autonomy also exist (see below para 15).

Although autonomy arrangements show a certain affinity to federal states, federal sub-State structures are different from autonomous territories because a federation entails a more or less symmetrical designation of (exclusive) law-making powers—on the basis of the constitution of the federal State—to two or more entities at the sub-State level. In this case, the sub-State level often vests the federal level with enumerated powers exercised at least in principle in a shared manner with the sub-State entities, through institutional representation of the sub-State entities at the federal level and leaves—at least in classic federal States—the sub-State entities with residual powers. At the same time, the federal level is often entitled to encroach on the law-making powers of the constituent States on the basis of the doctrine of pre-emption, making the law-making powers of the constituent states less exclusive than they appear to be under the constitution of a federal State.

A number of autonomy arrangements already existed before the 20th century, such as the Grand Duchy of Finland within the Russian Empire between 1809 and 1917, and the islands of Crete and Samos since 1899 and 1832, respectively, within the Turkish Empire. However, a more distinct development of the notion of autonomy started after World War I, and autonomy was, for instance, instituted in 1920 by the Parliament of Finland for the then secessionist Åland Islands (Secession) and in 1932 by the Spanish Republic for Catalonia. In these two cases, the initiation of the autonomy arrangement was a domestic constitutional measure. Currently, the domestic constitutional arrangements establishing autonomy can in most cases be described as ad hoc arrangements, which create a domestic constitutional obligation for the State in question to uphold the autonomy. Only the 1978 Constitution of Spain creates, in its Art 2, a right to autonomy, in particular for historical communities, while reserving in the Preamble of the Constitution to the whole of Spain the designation of a ‘nation’ within which the autonomy of different communities is developed. As a consequence, the Spanish Constitutional Court held on 28 June 2010 that the interpretative references to ‘Catalonia as a nation’ and ‘Catalonia’s national reality’ in the Preamble to Organic Law 6/2006 of 19 July 2006 to reform the Statute of Autonomy of Catalonia have no legal effect. It is hence possible to conclude that autonomy is primarily affected by means of constitutional provisions at the national level. However, a number of autonomies are or have been based on treaties or other international commitments (see below paras 9–11, 18, 20–21), the contents of which are implemented in the domestic legal orders of the States that are subject to the international obligations.

By way of a non-exhaustive list of examples, the following entities could be regarded as autonomous, although all of them do not necessarily possess exclusive law-making powers on the basis of enumeration: Nakhchivan in Azerbaijan; different territories in China, in particular Hong Kong and Macau, but perhaps also other territories labelled as autonomous, such as Tibet; the Faroe Islands and Greenland in Denmark; the Åland Islands in Finland; French Polynesia in France; South Ossetia, Abkhazia, and Adjara in Georgia, although the position of South Ossetia and Abkhazia is unclear following their declarations of independence; Mount Athos in Greece, which perhaps is not clearly an autonomy because of its religious nature; Aceh, in Indonesia, where a short-term international monitoring mission existed; the five traditional autonomous regions, including Trentino-Alto Adige or South Tyrol in Italy; Rodriguez in Mauritius; Gagauzia in Moldova; North Atlantic Autonomous Region and South Atlantic Autonomous Region in Nicaragua; the State of Azad Jammu and Kashmir (Kashmir) in Pakistan; Bougainville in Papua New Guinea; Muslim Mindanao in the Philippines; Azores and Madeira in Portugal; Vojvodina in Serbia; autonomous communities, in particular the historical ones (eg Catalonia and the Basque Country), in Spain; Northern Ireland, Wales, and Scotland in the United Kingdom and the Crown Dependencies of Guernsey, Jersey, and the Isle of Man (Channel Islands and Isle of Man); Zanzibar in Tanzania; Nunavut in Canada; and American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the US Virgin Islands in the United States. As indicated by these examples, territorial autonomy is a global phenomenon, often, but not at all always, found in insular situations. However, autonomy is not necessarily a phenomenon which in all of these cases would have international roots; in a number of cases, the origins of autonomy are purely domestic, although in many cases, autonomy implies both domestic and international action.

A majority of the territorial autonomies exist in unitary States and they break up the symmetrical constitutional fabric of the State by creating, in most cases, a singular entity vested with particular powers. However, autonomous entities can also exist in federal States. When the symmetrical federal organization is complemented with a singular entity that remains outside of the regular federal organization, such as Puerto Rico in the United States or Nunavut in Canada, it is possible to call that singular entity an autonomy. If States that include one or several autonomous entities are tallied with the number of federal States, the result, at least in Europe, is that the ‘regular’ text-book example of a State, the monolithic unitary State, finds itself in a minority and is no longer the prime example of a State. Today, the majority of European States are not based on the model of the clear-cut and symmetrical unitary State.

Under the law of State responsibility, States are responsible for autonomies. If an international treaty permits territorial exceptions, such may be used to exempt the territory fully or partially from the application of the international norm. This is a mechanism sometimes used, for instance, in the accession treaties of States to the European Union (EU). Examples in this respect range from the particular position of Mount Athos in Greece (Documents concerning the Accession of the Hellenic Republic to the European Communities, Final Act, Joint Declaration concerning Mount Athos [signed 28 May 1979, entered into force 1 January 1981] [1979] OJ L291/186) to the Åland Islands in Finland (Act concerning the Conditions of Accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the Adjustments to the Treaties on which the EU is Founded, Protocol No 2 on the Åland Islands [signed 24 June 1994, entered into force 1 January 1995] [1994] OJ C241/352).

In addition, although a territory has been granted a political and constitutional status as a sub-State entity, as an autonomy, or as a State in a federation, the State to which the sub-State entity belongs is—under international law and as outlined by the Permanent Court of International Justice (PCIJ) in 1937 in the case of Lighthouses of Crete and Samos—entitled to take action on behalf of that sub-State entity, at least as long as a political link of some sort exists between the State and the sub-State entity. The dispute was between France and Greece and dealt with the issue of whether a contract for the maintenance of lighthouses (Lighthouses and Lightships) entered into by Turkey and a French company in 1913 for the period between 1924 and 1949 was to be held valid in relation to Greece, which had been assigned the islands after the Balkan wars. In that case, the PCIJ developed and used a ‘political link test’ to determine on the basis of the constitutive documents whether or not an autonomous territory has seceded from the mother-country. The PCIJ assessed whether, at the time of the conclusion of a disputed contract concerning renewal of a lighthouse concession, ‘the territories of Crete and Samos were already, in law, territories detached from the Ottoman Empire, in the full meaning of the word “detached”, which in the opinion of the Court connotes the entire disappearance of any political link’ (para 36), requiring treaty arrangements as the ultimate sign for transfer of sovereignty over territory to another State. The Court inquired in some detail into the internal constitutional setting of the governments of Crete and Samos, but felt that

[t]he wide forms of autonomy conferred on the territories in question could only be taken into consideration for the solution of the present dispute, if they justified the conclusion that the autonomous territories were already, at the date of the contract, detached from the Ottoman Empire to the extent that every political link between them and the Sublime Porte had been severed, so that the Sultan had lost all power to make contracts in regard to them (para 36).

The Court found that there still existed, in 1913, such links to Turkey that the two autonomies could not be regarded as being severed from Turkey and placed under the sovereignty of Greece. The protection of the sovereignty of the State was thus important in the context, while the internal distribution of powers between the State and the sub-State entity was evidently regarded as a more domestic constitutional issue.

2.  Autonomy in Treaties after World War I

The notion of autonomy was also used in several treaties after World War I (Peace Treaties after World War I), including the Versailles Peace Treaty (1919) itself (Treaty of Peace between the Allied and Associated Powers and Germany [signed 28 June 1919, entered into force 10 January 1920] [1919] 225 CTS 188), which made reference in Art 81 to the autonomous territory of the Ruthenians as a part of the Czecho-Slovak State. The provision was supplemented by a separate Treaty between the Principal Allied and Associated Powers and Czechoslovakia ([signed 10 September 1919, entered into force 16 July 1920] [1919] 226 CTS 170) concerning the Ruthenian autonomy. In respect of another region, the former East Prussian area of Memel, Art 99 Versailles Peace Treaty caused the area to be placed under the international administration of the Allied and Associated Powers, but the area was occupied by Lithuanian armed forces in 1923. As a consequence, in 1924 the Allied and Associated Powers involved in the administration of the Memel Territory concluded a Convention concerning the Territory of Memel ([signed 8 May 1924, entered into force 25 August 1925] 29 LNTS 85), according to which the Memel Territory would constitute, under the sovereignty of Lithuania, a unit enjoying legislative, judicial, administrative, and financial autonomy, within the limits prescribed by the Statute of Memel, set out in Annex I to the Convention concerning the Territory of Memel. The Statute of Memel, in turn, referred to the measure as a grant to the Memel Territory of the status of an autonomous unit. In 1939, the Memel Territory was eventually reunited with Germany following the Treaty on the Reincorporation of the Memel Territory into Germany. Although the Versailles Peace Treaty did not, in its Art 88, specify any administrative arrangement for Upper Silesia, an autonomy arrangement was nonetheless created by Poland in 1920 for that region. According to Art 62 Sèvres Peace Treaty (Treaty of Peace with Turkey [signed 10 August 1920, never entered into force] [1921] 15 AJIL 179) between the principal Allied Powers and the Ottoman Empire (that is, former Turkey under the Sultanate), a scheme of local autonomy for the predominantly Kurdish areas in the north-eastern parts of the empire would be drafted. In Art 149 Sèvres Peace Treaty, Turkey undertook to recognize and respect the ecclesiastical and scholastic autonomy of all racial minorities in Turkey (Minorities, International Protection). However, as a consequence of the overthrow of the Sultanate, the new republican government of Turkey concluded a new treaty, the Lausanne Peace Treaty (1923) (Treaty of Peace with Turkey, with related Documents [signed 24 July 1923, entered into force 6 August 1924] 28 LNTS 11), which superseded the Sèvres Peace Treaty and in which the reference to the Kurdish autonomy does not appear. In the 1920 Peace Treaty between the Republic of Finland and the Russian Socialist Federal Soviet Republic ([signed 14 October 1920, entered into force 31 December 1920] 3 LNTS 5; ‘Tartu Peace Treaty’; ‘Dorpat Peace Treaty’), reference was made in Arts 10 and 11 to the Autonomous Territory of Eastern Carelia (see also Eastern Carelia [Request for Advisory Opinion]). The Autonomous Territory was to include the Carelian population of the governments of Archangel and Olonetz as well as two municipalities close to the Finnish border with Russia, and it would enjoy the national right of self-determination. The Soviet-Russian involvement in autonomy issues continued with the Treaty of Kars of 1922 (Treaty of Friendship between Turkey, the Socialist Soviet Republic of Armenia, the Azerbaijan Socialist Soviet Republic, and the Socialist Soviet Republic of Georgia, with participation of Russia [done 13 October 1921, entered into force 11 September 1922] in H Triepel [ed] Martens Nouveau recueil général de traités [1909–69] series III vol 30, 17), which complemented the Treaty of Moscow (Treaty of Friendship between Turkey and Russia [done 16 March 1921, entered into force 22 September 1921] in H Triepel [ed] Martens Nouveau recueil général de traités [1909–69] series III vol 16, 37). In the Treaty of Kars, the Turkish government and the Soviet governments of Armenia and Azerbaijan agreed that the region of Nakhchivan shall constitute an autonomous territory under the protection of Azerbaijan. In addition, Turkey agreed to cede to Georgia suzerainty over the town and port of Batumi, with the territory to the north of the frontier which formed part of the district of Batumi, on condition that the population of the localities, notably a Muslim population, shall enjoy a greater measure of local administrative autonomy. Today, this region of Adjara still enjoys some autonomy as a part of Georgia.

10  The objective of those post-war treaties, which contained autonomy provisions, was to denote the creation of a particular jurisdiction, often for the protection of a minority population defined on the basis of ethnic, linguistic or religious characteristics. The autonomy thus created involved in most cases the grant of legislative powers proper to the autonomous entity. This development of the international notion of autonomy also took place within the framework of the League of Nations, which on the initiative of Great Britain, but outside of the frames of the Versailles Peace Treaty, dealt with the dispute about the national affiliation of the Åland Islands, an archipelagic area between Finland and Sweden, which sought secession from Finland and union with Sweden. The Parliament of Finland had enacted an Act of Self-Government of the Åland Islands in 1920 (the Self-Government Act of Åland [done 7 May 1920]) setting up a legislative assembly with relatively extensive law-making powers, which was not accepted by the inhabitants of the Åland Islands. The question was referred to the League of Nations, and the Council of the League of Nations brokered a solution in 1921 between Finland and Sweden (‘Åland Islands Settlement’). This decision confirmed the sovereignty of Finland over the Åland Islands, under the condition that the Act on the Autonomy of Åland of 1920 was supplemented with certain guarantees that would help maintain the Swedish character of the Åland Islands. Instead of the term ‘self-government’, the League of Nations used the term ‘autonomy’. The list of guarantees included in the so-called Åland Islands Settlement of 1921, including a complaints mechanism connected to the League of Nations that the Åland Islanders could avail themselves of (but which was never used), was transcribed exactly into positive law in Finland in 1922 (the so-called Guarantee Act of Åland [done 11 August 1922]), and after this, the inhabitants of the Åland Islands started to work within the institutions of the autonomy. At the same time, the matter disappeared from the international agenda. Because it is still in operation, the autonomy of the Åland Islands is often referred to as the oldest existing autonomy in the world. After an overhaul of the legislation in 1951, the autonomy arrangement of Åland is currently based on the 1991 Self-Government Act ([signed 16 August 1991, entered into force 1 January 1993]) and on Sections 75 and 120 of the Constitution of Finland ([done on 11 June 1999, entered into force on 1 March 2000]). The Self-Government Act creates particular provisions for the participation of the Åland Islands in decisions that deal with the conclusion and implementation of treaties and with decision-making concerning EU matters (see below para 30). In addition, the Åland Islands has a recognized formal position in the Nordic Council (see below para 31).

11  The use of the notion of autonomy in different treaties, sustained by the use of the notion at the level of domestic legislation, mainly constitutional law, makes it possible to draw the conclusion that a legal understanding of the term ‘autonomy’ existed between the two World Wars in the form of territorial autonomy, which took on the form of creation, by way of treaties, of singular, territorially circumscribed entities with their own jurisdiction. In particular, the Statute of Memel with its reference to autonomy can be regarded as evidence of such an understanding, refined further by the case of Interpretation of the Statute of the Memel Territory, resolved by the PCIJ in 1932. In that case, the President of the Directorate of the Memel Territory, that is, the Head of Government of the autonomous territory created for the Germans and Lithuanians living there, had visited organs of the Republic of Germany, whereupon the Governor of Memel as a representative of the Republic of Lithuania had dismissed the President of the Directorate for violation of the distribution of powers between Memel on the one hand and Lithuania on the other (foreign relations were, under Art 7 Statute of Memel, within the exclusive jurisdiction of the Lithuanian Republic), although the Statute of Memel did not contain any provision that would have made such a dismissal possible. According to the Court, when Lithuania undertook to secure to the Memel Territory autonomy within the limits fixed by the Statute of Memel, it certainly was not the intention of the Parties to the Convention concerning the Territory of Memel that the sovereignty should be divided between the two entities, Lithuania and Memel, which were to exist side by side in the same territory.

Their intention was simply to ensure to the transferred territory a wide measure of legislative, judicial and financial decentralization, which should not disturb the unity of the Lithuanian State and should operate within the framework of Lithuanian sovereignty. Whilst Lithuania was to enjoy full sovereignty over the ceded territory, subject to the limitations imposed on its exercise, the autonomy of Memel was only to operate within the limits so fixed and expressly specified. It follows that the sovereign powers of the one and the autonomous powers of the other are of a quite different order in that the exercise of the latter powers necessitates the existence of a legal rule which cannot be inferred from the silence of the instrument from which the autonomy is derived, or from an interpretation designed to extend the autonomy by encroaching upon the operation of the sovereign power (paras 48–50).

The Court held that Memel’s autonomy only existed within the limits fixed by the Statute of Memel and that, in the absence of provisions to the contrary in the Convention concerning the Territory of Memel or the Statute of Memel, the rights ensuing from the sovereignty of Lithuania must apply. Therefore, it was in order under the Statute of Memel that the President of the Directorate was dismissed by the Governor of Memel, that is, by the State of Lithuania. However, as concerns the functioning of the autonomous Memel Territory, the Court rebuked the attempts of the government of Lithuania to carry out other measures that were incompatible with the Statute of Memel. Therefore, the Memel case contains a pointer to the direction that autonomy entails self-government within the singular entity, based on participation of its inhabitants. The Memel case is notable also for its competent treatment of the mechanism of parliamentary accountability of the autonomous government of Memel before the Chamber of Representatives of the Memel Territory.

12  Hence in the light of this case, the protection of the external sovereignty of a State is a paramount concern, not easily relinquished to its sub-divisions. However, internal sovereignty is apparently a quality that can be divided between the State and its sub-divisions. Looking at the autonomy provisions contained in treaty arrangements from the point of view of public international law, they appear to have been framed as limitations of the sovereignty of the State in which the autonomous entity existed, recorded in one way or the other in the constitutional fabric of the State after a possible international obligation has been entered into. In the Status of the Eastern Carelia case, the PCIJ was asked to give an advisory opinion on what the description of the territory of Eastern Carelia as ‘autonomous’ in the Dorpat Peace Treaty means, but because Soviet Russia did not want to participate in the proceedings before the PCIJ, the Court declined to give an advisory opinion on the matter.

3.  The Modern Understanding of Autonomy

13  Whereas the notion of autonomy was, during the inter-war period, mainly focused on so-called territorial autonomy, that is, on the devolution of law-making powers to a separate and special jurisdiction in a unitary State, the Sèvres Peace Treaty with its provisions concerning minorities and the Status of the Eastern Carelia case indicate that there may have been other notions of autonomy, too, at that time, such as non-territorial cultural autonomy.

14  However, in the first decades after World War II, the international community shifted its attention from minority rights towards general human rights, and the attempts to guarantee the position of a particular minority in a territorial entity through an autonomy arrangement grew less frequent. Instead, the attention of the international community was turned towards the issue of self-determination, in particular in the colonial context. For instance, the UN was unwilling to assume the role of a guarantor of the Ålandic autonomy arrangement as a successor to the League of Nations, while Finland continued to recognize the existence of a unilateral obligation under customary international law towards upholding the autonomy of the Åland Islands. Territorial autonomy is, nonetheless, still used in international relations and in treaties with a view to different functions.

15  Today, a reference to the term autonomy is no longer limited to territorial autonomy, but encompasses also such forms of autonomy, which are non-territorial in nature. In addition to cultural autonomy, it is also possible to refer to other forms of autonomy, such as functional autonomy and personal autonomy, both of which are institutional forms that are being used in minority contexts. Functional autonomy aims at providing adequate linguistic services to a minority population in respect of a certain public function (such as education) by means of creating special linguistically identified units at different administrative levels inside the general line-organization charged with the national, regional, or local administration of the public function. Personal autonomy implies the use of the freedom of association as a general civil right in the horizontal relations between individuals belonging to a minority group to create institutions for carrying out different cultural and other activities primarily under private law, although public law and dimensions of functional autonomy may enter an institution of personal autonomy if the State, for example, grants a public function to the association, such as a licence to maintain a private school, or some other public function important for the minority in question.

16  More often than not, territorial autonomy is based solely on constitutional documents. Public international law is hence not the primary source of norms that create autonomy arrangements. Because the constitutions of the different countries are not tied to any specific terminology that would, in all instances, feature the word ‘autonomy’, the constitutional norms may refer to autonomy, but also to self-government, special administrative region, or territory. Although an autonomy arrangement is normally defined in the constitutional norms of the State, it is possible, from the point of view of entrenchment, to hold that an autonomy arrangement may be entrenched in an international treaty (eg South Tyrol), in a particular decision by an international body (eg the Åland Islands), and, provided that the population can be regarded as a people, in the principle of self-determination (eg Greenland, New Caledonia). Such international entrenchment is intended to protect the autonomy arrangements at the national level.

B.  Function

17  The above account concerning autonomy indicates that autonomy could fulfil at least three different functions, namely minority protection, conflict resolution, and the exercise of self-determination.

18  As concerns autonomy for reasons of minority protection and also conflict resolution, the case of South Tyrol is illustrative. The issue can be traced back to the post-World War I transfer of territory and thereby also of people from Austria to Italy. The German and Italian speaking population residing in that area was granted autonomy after World War II on the basis of Provisions Agreed upon by the Austrian and Italian Governments (Annex IV to the Treaty of Peace with Italy ‘Provisions Agreed upon by the Austrian and Italian Governments’ [signed 5 September 1946, entered into force 15 September 1946] 49 UNTS 184; ‘Gruber–De Gasperi Agreement’; see also Peace Treaties [1947]), attached in 1947 to the Treaty of Peace with Italy ([signed 10 February 1947, entered into force 15 September 1947] 49 UNTS 3), in which Italy undertook to grant autonomy to the area, coupled with measures for the protection of the cultural identity of the German-speaking minority. According to the Provisions, the populations of the above-mentioned area were to be granted the exercise of autonomous legislative and executive regional power, and the framework within which the provisions of autonomy would apply was to be drafted in consultation also with representatives of the German-speaking local population. The autonomy of South Tyrol was first spelled out in the Autonomy Statute of 1948 (Statuto speciale per il Trentino-Alto Adige, Legge Constituzionale no 5 [26 February 1948]) but due to widespread dissatisfaction with the arrangement, especially in comparison with the expectations concerning the Italian undertaking in the Treaty of Peace with Italy, and due to the overall development of the Italian Constitution as regards the regional organization of the State, amendments to the Autonomy Statute, regulating the position, competences, and powers of South Tyrol as a part of the larger region of Trentino-Alto Adige, were enacted in 1972 (Statuto speciale per il Trentino-Alto Adige, Decreto del presidente della Republica no 670 [31 August 1972]). After the full implementation of all the measures in 1992, at which point Italy and Austria exchanged notes about the settlement of the dispute and notified the United Nations about the regularization of the situation, the autonomy arrangement has functioned well.

19  Autonomy for reasons of conflict resolution was clearly the aim with the so-called Camp David Accords (1978). As a part of the Camp David Accords, the Framework for Peace in the Middle East, agreed upon by Egypt, Israel, and the United States in 1978, used the concept of self-government to indicate the position of the autonomy arrangement for the Palestinians in the West Bank and Gaza, perhaps in a manner which was ambiguous enough to satisfy the interpretation needs of all parties (Framework for Peace in the Middle East Agreed at Camp David [with Annex] [Israel–Egypt] [signed 17 September 1978, entered into force 17 September 1978] 1138 UNTS 39). The Framework for Peace in the Middle East refers to the provision of full autonomy to the inhabitants under a self-governing authority freely elected by the inhabitants of these areas, so that due consideration can be given to, inter alia, the principle of self-government by the inhabitants.

20  Autonomy for reasons of conflict resolution accompanied by a reference to self-determination can be found in the recreation of the devolution arrangement in Northern Ireland on the basis of the so-called Good Friday Agreement of 1998, that is, the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland (Agreement Reached in the Multi-Party Negotiations [signed 10 April 1998, entered into force 2 December 1999] [1998] 37 ILM 751). The autonomy arrangement was premised on the self-determination of the two populations on the island of Ireland, making the point that the present wish of the majority of the population of Northern Ireland is to remain united with the United Kingdom. The Agreement established an Assembly for the exercise of full legislative and executive authority in respect of a range of matters.

21 Kosovo (Kosovo [Advisory Opinion]) was an autonomous entity in the Yugoslav federation until 1989 (see also Yugoslavia, Dissolution of), at which point its autonomous status was fundamentally weakened by means of constitutional amendments, leading to measures that caused unrest in the province between different population groups. After conflict resolution and minority protection attempts by parts of the international community by means of humanitarian intervention in Kosovo, UN Security Council Resolution 1244 of 10 June 1999 (SCOR 54th Year 32) declared that the aim of the international community was to promote ‘the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo’, taking full account of Annex 2 in the resolution and of the Rambouillet Accords (Interim Agreement for Peace and Self-Government in Kosovo [7 June 1999] UN Doc S/1999/648). Annex 2, in turn, starts

[a] political process towards the establishment of an interim political framework agreement providing for substantial self-government for Kosovo, taking full account of the Rambouillet Accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other countries of the region, and the demilitarization of UCK, the armed movement in Kosovo. Negotiations between the parties for a settlement should not delay or disrupt the establishment of democratic self-governing institutions [Demilitarization].

While the autonomy thus proclaimed turned out to be an international protectorate [Protectorates and Protected States], the final solution that emerged was not autonomy within Serbia, but a controlled and to some extent limited independence under, in particular, Arts 147 and 153 Constitution of the Republic of Kosovo (adopted 9 April 2008, entered into force 15 June 2008), which seemed to display such a degree of detachment from Serbia that the political link test developed by the PCIJ was no longer satisfied for the purposes of defining Kosovo an autonomous part of the State of Serbia. After the declaration of independence of Kosovo, numerous States have recognized [Recognition] Kosovo as a State, while a number of States have not done so, or are actively withholding recognition [Non-Recognition]. In the latter case, domestic reasons related to a wish not to support secessionist tendencies are referred to. In its Advisory Opinion of 22 July 2010 on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (ICJ Doc 2010 General List No 141), the International Court of Justice (ICJ) did not find any prohibition of a declaration of independence in general international law that would have prevented the extended Assembly of Kosovo from adopting such a declaration on 17 February 2008 (para 84). In addition, because the declaration of independence was adopted outside of the constitutional structures created under Resolution 1244 (1999), the declaration of independence did not violate the Constitutional Framework of Kosovo or Resolution 1244 (1999) (paras 105, 109, 114, 118, 119). The inclusion of Kosovo as a State in the international community now seems to depend on the willingness of the other States to cooperate with Kosovo. It remains to be seen how the carefully limited ICJ opinion will affect other areas wishing to secede from a State.

22  While the solution reached in Camp David did not prove viable, and the Kosovo solution is bound to take another direction than that of a sub-State arrangement, the Good Friday solution has actually started to work after initial difficulties. The solution in South Tyrol can be regarded a success and the operation of the autonomy arrangement there has actually removed the issue from the agenda of the international community. However, it deserves to be pointed out that not all autonomy arrangements exist for reasons of minority protection. The solution for Northern Ireland and the one proposed for Palestine point at the fact that the more recent territorial autonomy arrangements may be connected to the principles of self-determination and self-government in a manner which was not—at least explicitly—present in the arrangements during the inter-war period.

C.  Legal Regimes

23  Outside of the context of de-colonization, the right of self-determination is, in the UN system, mainly interpreted as a right applicable to the entire population of an existing State. It has not, as a right included in Art 1 International Covenant on Civil and Political Rights (1966) (999 UNTS 171), been held by the UN Human Rights Committee as one upon which individual applications could be based. The right of self-determination is often divided into external and internal self-determination, the former implying external sovereignty and the latter the possession of legislative powers as a quality of internal sovereignty. The legislative powers of a State can be divided between several law-making entities, such as sub-State entities denoted as autonomies. This is implied by the UN Friendly Relations Declaration 1970 (UNGA Res 2625 [XXV] ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations’ [24 October 1970] GAOR 25th Session Supp 28, 121), which offers altogether three alternatives as institutional options for the realization of self-determination, namely independence, integration into an existing State, and any other political status. The third alternative includes different autonomy arrangements for groups of persons that may be defined as peoples. While the right to self-determination does not create any right to autonomy, the right to self-determination may, nonetheless, protect such existing autonomy arrangements where the beneficiary can be regarded as a people, thus limiting possible attempts by the State to weaken such an autonomy arrangement or abolish it altogether. As concerns judicial proceedings, because the State is the entity that the international legal order recognizes as a subject of international law, autonomies do not have standing before the ICJ. Autonomy may also constitute such effective participation, which the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UNGA Res 47/135 [18 December 1992]) recommends the State to facilitate when such needs exist.

24  A possible connection of autonomies to self-determination may become highly problematic, igniting secessionist attempts on the part of sub-State entities. Case law from two national courts, albeit in federations, the first Constitutional Court of the Russian Federation and the Supreme Court of Canada, contains interpretations not only of the national constitutions, but also of the principle and right of self-determination in international law that are relevant for autonomy arrangements. In the Tatarstan case of 1992, the Russian Constitutional Court found that it was possible to organize an independence referendum in a sub-State entity with reference to the right of self-determination of peoples, but that international law, in particular the principles of sovereignty and territorial integrity of the State, prevented unilateral secession. In the Reference re Secession of Quebec case, the Supreme Court of Canada arrived more or less at the same conclusion after concluding that the situation was not of a colonial nature and not such where the population of Quebec would have been deprived of its right to meaningful representation in decision-making. The Canadian court felt that unilateral secession on an illegal basis might prevent the established States and the international community from recognizing the independence of Quebec. Interestingly, the Canadian court was using more or less the same international instruments as the Russian court. Both cases imply that self-determination protects the established State from secessionist attempts by its sub-State entities, including autonomies, at the same time as internal self-determination can be recognized for such entities.

25  With a view to indigenous peoples, the ILO Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries ([adopted 27 June 1989, entered into force 5 September 1991] 1650 UNTS 383) does not explicitly mention autonomy as an institutional solution, but it can be viewed as supporting such solutions. This interpretation is sustained by the United Nations Declaration on the Rights of Indigenous Peoples (13 September 2007), which in Art 4 recognizes for indigenous peoples not only the right to self-determination, but also the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. Exactly what institutional form such indigenous autonomy would take on is not clear on the basis of the declaration, but the reference to autonomy seems open-ended, allowing the institutional options to range from territorial autonomy with legislative powers proper, via territorial administrative autonomy, to non-territorial cultural autonomy and functional autonomy. For instance, the self-rule of Greenland on the basis of the Danish Act No 473 on the Self-Government of Greenland (12 June 2009), which uses Inuit terms for the governmental organs and refers to the self-determination under international law of the people of Greenland, may be regarded as an example in this respect. Notably, the Danish Act also recognizes for Greenland the possibility of deciding whether to become independent.

26  In general, interaction between different entities at the level of public international law is limited to subjects of international law, that is, States and inter-governmental organizations. Treaties are made by them and between them. Most inter-governmental organizations admit only States as their members. Autonomies therefore do not normally represent themselves directly at the level of public international law as parties to treaties or as members of inter-governmental organizations. Some inter-governmental organizations, such as the World Trade Organization (WTO), admit as members such sub-State entities, including autonomous territories, that are constituted as separate customs territories, which is the case, for instance, with the Hong Kong Special Administrative Region in China. In the WTO, Hong Kong appears as a member under the name ‘Hong Kong, China’. Several inter-governmental organizations are open to at least some form of sub-State presence, such as the International Maritime Organization (IMO), which has admitted Hong Kong, China, Macao, China, and the Faroe Islands, Denmark, as associate members. From the point of view of autonomies, Denmark, for instance, grants to the Faroe Islands and Greenland, under legislation enacted in 2005, the right to take part in such international organizations in which Denmark is not a member. In addition to its involvement in the Nordic Council (see the below para 31), the Faroe Islands is currently a member of the North Atlantic Marine Mammal Commission (NAMMCO) and associate member of the Food and Agriculture Organization of the United Nations (FAO) and the IMO; is member of the Arctic Council through Denmark; and has entered into treaty relationships over, inter alia, fisheries and trade-related matters with Iceland, Norway, the EU, and the Russian Federation. The Faroe Islands also has representations in third countries, namely the EU, Iceland, and the United Kingdom. In addition to its involvement in Nordic Council (see below para 31), Greenland is currently a member of the Arctic Council through Denmark and has a partnership agreement with the EU.

27  As concerns treaty-making powers and international relations in general, States are generally speaking protective of their sovereignty and they normally do not grant treaty-making powers to sub-State entities. Some States such as China—through the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong—and Denmark—through two separate Danish acts enacted in 2005, Act No 579 concerning the Entering into Agreements under International Law by the Government of the Faroe Islands (24 June 2005) and Act No 577 concerning the Entering into Agreements under International Law by the Government of Greenland (24 June 2005)—may make exceptions to the treaty-making power of the State, and grant a certain capacity to autonomies to conclude treaties or treaty-like relationships with third States. In such situations, the State is, ultimately, responsible for the international obligation.

28  In so far as the State concludes an international obligation and the treaty requires domestic implementation, legal problems may emerge when the distribution of competences places domestic implementation on the autonomous territory. This is possible, in particular, in States where the implementation of treaties is based on dualism and where, in addition to ratification, a particular implementing act has to be enacted, often by the relevant legislature. If the autonomous entity fails in its implementation of the treaty, it is primarily the State that is internationally responsible for the breach of the treaty.

29  While the Council of Europe (COE) is an international organization which admits only States as its members, its structure contains an organ, the Congress of Local and Regional Authorities, which is composed in a manner that permits sub-State entities, such as autonomies, to feature with their representatives in the delegations designated by the State. There is no reference to autonomy in the COE Framework Convention for the Protection of National Minorities (‘Framework Convention’), but there is a reference in Art 15 Framework Convention to effective participation of minorities in a manner which would also include autonomies. The Convention for the Protection of Human Rights and Fundamental Freedoms (‘European Convention on Human Rights’ [ECHR]) was concluded in 1950 to guarantee human rights for individuals in the Member States, but the State as such is, of course, also responsible for possible violations of the ECHR, including in its sub-State entities, such as autonomies (see also Human Rights, Domestic Implementation). This is evident, for instance, on the basis of the case of Ekholm v Finland ([ECtHR] App 68050/01), a case that turns on the inaction of the local authorities in enforcing legislation, which belongs to the legislative competence of the Legislative Assembly of the Åland Islands. The ECHR itself is applicable in autonomies, including Art 3 Protocol No 1 to the European Convention on Human Rights and Fundamental Freedoms ([done 20 March 1952, entered into force 18 May 1954] 213 UNTS 262), which creates a right to free elections of the legislature. While this might have been initially thought of as applying only to the law-making body of the State, the provision has been interpreted, for instance, in Booth-Clibborn and others v United Kingdom ([ECtHR] App 11391/85) and Mathieu-Mohin and Clerfayt v Belgium ([ECtHR] App 9267/81), so as to extend itself also to the legislatures of sub-State bodies, such as autonomies, provided that the legislature of the sub-State entity has legislative powers proper delegated to it under the constitution of the State.

30  The EU is a supra-national organization, which admits only States as its members. The EU rules are crafted in a process which to a great extent relies on the Member States. Almost invariably, the transfers of national legislative competences to the EU have diminished the legislative competences of the autonomous entities at the sub-State level. To facilitate at least partial compensation for the loss of competence, there is a Committee of the Regions, which gives sub-State entities, such as autonomies, the opportunity to feature with their representatives in this community organ of an advisory nature, expressing its opinions when EU legislation is prepared. The EU has traditionally interacted with the Member State, but the provision in Art 5 (3) Treaty on European Union ([signed 13 December 2007, entered into force 1 December 2009] [2008] OJ C115/1) enlarges the scope of subsidiarity, inter alia, to the regional level in a manner that may enhance the role of sub-State entities, including autonomous territories, as partners in European integration. The EU uses the Member States for the implementation of its legislation, which means that autonomous entities are also under the obligation to implement community legislation in their spheres of competence, either by legislative or administrative decisions. In some cases, the autonomous entities, such as the Canary Islands, the Azores, and Madeira, have been granted exceptions at the level of primary law of the Union, that is, at the treaty level, in certain areas that are of importance for them, such as taxation. In addition, Protocol No 2 to the Finnish accession treaty recognizes the special status under international law of the Åland Islands (see para 7 above). The autonomous entities do not as such have standing before the European Court of Justice (ECJ), but their acts or failures to act have in a number of cases resulted in findings by the ECJ that the State has violated EU law, as in Case C-343/05 Commission of the European Communities v Republic of Finland. In this case, the ECJ found a failure by Finland as a Member State to fulfil its obligations with regard to Directive 2001/37/EC of 5 June 2001 on the approximation of the laws, regulations, and administrative provisions of the Member States concerning the manufacture, presentation, and sale of tobacco products ([2001] OJ 194/26), which prohibits the placing on the market of tobacco for oral use, because Finland had failed to transpose the directive within the prescribed period, although the failure to fulfil obligations existed only in the autonomous territory of the Åland Islands. Finland was thus ordered to pay the costs resulting from the case. In some respects, the ECJ has, for the purposes of application of EU law, recognized the existence of autonomous entities separate from the State for the purposes of the application of State aid rules. On the basis of Case C-88/03 Portuguese Republic v Commission of the European Communities, the Grand Chamber of the ECJ tried, in an action for annulment, the position of the Autonomous Region of the Azores in relation to the State aid provisions that originated in Art 87 (1) Treaty establishing the European Community. In this case, the ECJ developed certain criteria for an infra-State authority with sufficient autonomy so as to escape the application of the prohibition to grant selective State aid (para 67), and concluded that the Azores were not autonomous enough for the purposes of considering its tax scheme non-selective (para 79). In a subsequent case (Joined Cases C-428/06 to C-434/06 Unión General de Trabajadores de La Rioja (UGT-Rioja) and Others v Juntas Generales del Territorio Histórico de Vizcaya and Others), involving a preliminary ruling to a Spanish court, the ECJ refined the three criteria to mean institutional, procedural, and economic and financial autonomy. Hence in EU law, there may, depending on the substantive area, exist distinctions between different sorts of autonomies, such as those infra-State entities that possess and those that do not possess sufficient autonomy. Autonomies cannot, as a rule, appear as parties before the ECJ, but it is possible that an autonomous territory, which is normally incorporated under national law as a legal person, can institute proceedings before the General Court of the EU under Art 263 (4) Treaty on the Functioning of the European Union, provided that such proceedings are instituted against an act addressed to such an autonomy, or against an act which is of direct and individual concern to it, or against a regulatory act which is of direct concern to it and does not entail implementing measures. Such proceedings have been regarded as admissible, for instance, in Case T-214/95 Het Vlaamse Gewest (Flemish Region) v Commission of the European Communities, because the decision of the Commission had a direct and individual effect on the legal position of the Flemish Region and it directly prevented the region from exercising its own powers. Therefore, the region had an interest of its own to challenge the decision.

31  The Nordic autonomies, that is, the Faroe Islands, Greenland, and the Åland Islands, have a particular position in two Nordic organizations, the Nordic Council, which is an international organization with mainly advisory functions, and the Nordic Council of Ministers, which is approaching a supra-national organization because of the binding decisions that it can make concerning the five Member States and, if the sub-State entities consent, concerning the three autonomous territories. According to the Helsinki Treaty (Agreement between Finland, Denmark, Iceland, Norway and Sweden concerning Co-operation [signed 23 March 1962, entered into force 1 July 1962] 434 UNTS 145), the three Nordic autonomies have had, since 1970 and 1984, their respective parliamentary delegations in the Nordic Council so that out of the 87 delegates, the legislatures of each of the autonomous territories appoint two, which gives the autonomous territories altogether six voting delegates in the Nordic Council. In addition, governments of the Nordic States and of the three autonomous territories may nominate as many non-voting delegates as they wish to their delegation. Formally, the national delegations include also the delegates of the autonomous territories, but in the work of the Nordic Council, the delegates from the autonomous territories have the right to establish delegations of their own, and they also have the right to put forward initiatives and participate as non-voting members in committees and other organs of the Nordic Council. The Nordic Council of Ministers is a body in which the governments of the Nordic States and autonomies cooperate, but the governments of the three autonomous territories are not counted in the decision-making quorum and they do not have the right to vote in the Nordic Council of Ministers, although they have the right to participate in discussions and in other forms of the work of this ministerial organ.

32  The Organization of American States (OAS) and the Inter-American Convention on Human Rights do not specifically mention autonomy, but—as is evidenced by, inter alia, the case of Yatama v Nicaragua, dealing with the right to stand for election in the North Atlantic Autonomous Region and the South Atlantic Autonomous Region, which have a large indigenous population—the right to participation and the prohibition of discrimination in the Inter-American Convention on Human Rights protect the participation of indigenous persons by not allowing the limitation of nomination of candidates to parties only, established in ways that do not take into account, for instance, the customs of the indigenous populations.

33  Similarly, the African Union (AU) is a union of States, but the African Convention of Human Rights and Peoples’ Rights uses the term ‘self-determination of peoples’ in several different meanings, some of which recognize the existence of peoples at a sub-State level as collective units in a way which may be conducive to the creation of sub-State entities and to the protection of the position of such entities that have been created. The African Commission on Human Rights and Peoples’ Rights tried a request of recognition of independence by a group (not by an existing sub-State entity) from the former Zaire against the background of self-determination, and concluded in its decision in Katangese Peoples’ Congress v Zaire that no such right existed in the situation for the Katangese territory, inter alia, because it had not been shown that such violations of human rights had taken place in relation to Katanga that it would be justified, under the right of self-determination, to disturb the territorial integrity and sovereignty of Zaire. When turning down the request, the African Commission on Human Rights and Peoples’ Rights held that self-determination can be exercised in any of the following ways: ‘independence, self-government, local government, federalism, confederalism, unitarism or any other form of relations that accords with the wishes of the people but fully cognisant of other recognized principles such as sovereignty and territorial integrity’ (para. 4). Different forms of sub-State organization, such as territorial autonomy, could thus be used to realize self-determination. The opinion was confirmed in the decision Kevin Mgwanga Gunme et al v Cameroon.

34 Organization of Security and Co-operation in Europe (OSCE) does not create legally binding obligations for States, but instead political commitments for participating governments in the context of collective security arrangements. Para 35 of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE ([done 29 June 1990] [1990] 29 ILM 1305) mentions that the participating States will respect the right of persons belonging to national minorities to effective participation in public affairs, including participation in the affairs relating to the protection and promotion of the identity of such minorities. In doing so, the participating States note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic, and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned. Hence without identifying which particular form of autonomy could potentially be established for a minority to ensure its effective participatory rights, autonomy is clearly singled out in general terms as an institutional option.

D.  Evaluation

35  While several forms of autonomy exist, territorial autonomy is the one mainly considered under public international law. Cultural autonomy, functional autonomy, and personal autonomy receive less specific attention under public international law. Autonomies which exist for a group of persons that can be identified as a people, indigenous peoples in particular, may enjoy protection under the right to self-determination (see above, paras 23–25, 33), while autonomies set up for minorities that do not constitute peoples are at least entitled to protection under the right to effective participation (see above, paras 23, 29, 34). Although several autonomies have been created on the basis of treaties, all autonomies depend in one way or another upon domestic rules of a constitutional nature, albeit not always of a constitution in the formal sense. Relatively few autonomy arrangements are created so as to involve specific international guarantees for the maintenance of the autonomy arrangement or to establish particular bodies of oversight.

36  The State in which an autonomy arrangement exists is normally responsible for the international relations of the autonomous entity, both as concerns entry into treaty relationships and implementation of treaties concluded. Violations of international law in and by autonomous entities, such as human rights law, are the responsibility of the State, and because an autonomous entity does not have international legal subjectivity, such an entity normally cannot have independent standing before international courts and tribunals. Therefore, the party appearing before the judicial body is the State. In a few situations, there has been a recent development of recognizing domestically a certain international capacity to autonomous entities in those areas which belong to their legislative powers, but in these cases, too, the State bears the ultimate responsibility under international law. However, autonomy is a notion that presents challenges to the State, in particular to the unitary State, because it breaks the organizational symmetry of the State and also because it is inherent in the nature of autonomy that it seeks avenues to express itself, some of which appear in the international arena.

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