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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Constitutional Protection of the Autonomy of Ethnic Groups

Valeria Piergigli

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 10 December 2018

Subject(s):
Equality regardless of nationality — Equality regardless of race — Integration of ethnic communities — Bills of rights — Civil and political rights — Ethnic minorities — Indigenous communities

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  Definition/Forms of Autonomy

1.  Recognition of a certain degree of autonomy, in cases distinguished on a personal or territorial basis (see below), is one way democratic and pluralist jurisdictions regulate minority issues and accommodate different ethnic groups (see also protection of ethnic minorities). In international law there are no universally accepted definitions of the term ‘autonomy’ nor of the term ‘minority’. Nor is it possible to find any general claim to autonomy—such as a claim to self-administration, self-government or self-rule—on the part of minority groups towards their respective states. There is nevertheless broad consensus on the following description of ‘minority’:

A group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members—being nationals of the state—possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language (Capotorti para. 568).

2.  Thus in a relationship between majority and minorities, the concept of ‘autonomy’, derived from the Greek words ‘autos’ and ‘nomos’, indicates the power of minorities, considered as collective subjects, to establish their own organization and to regulate matters of interest for the preservation of their minority identity. However, recognition of self-government implies continuing state control, because the principles of autonomy and protection of ethnic minorities are both enshrined in the constitution of the state. Clearly, ethnic groups’ right to self-government is achieved best in legal orders that take an open and promotional, rather than repressive or indifferent attitude towards minority identity.

3.  Autonomy may be personal or territorial, depending on whether self-government rights are recognized to representative organizations of ethnic groups or to territorial bodies. In the first case, autonomy is based on freedom of association of minority members, who regardless of where they reside, decide to establish or voluntarily join minority bodies, which are generally granted administrative or advisory competence in language and cultural matters. In fact, personal autonomy is also known as ‘cultural’ autonomy and best suits communities scattered throughout a territory. Conversely, territorial autonomy is linked to the demarcation of indigenous minority settlements and requires concentration of communities—no matter how numerous they are—in the areas where the protection measures and rights to self-government are in force.

2.  Personal Autonomy

4.  In practical terms, personal autonomy is not very common. Leaving aside the millet system of the Ottoman Empire, which recognized self-government rights to religious communities of Jews and Christians, so-called personal or corporate federalism was invented in the early 20th century to solve the problems of national minorities after disintegration of the Austro–Hungarian Empire. In Europe, historical examples of personal autonomy occurred in the post-First World War period in Estonia, with regard to the German and Jewish minorities, while the start of regionalization in Belgium in the 1970s gave rise to territorial regions alongside ‘cultural communities’. More recently, the cultural autonomy of national minorities was regulated by law in Estonia (National Minorities Cultural Autonomy Act 1993 (Est)), while in Hungary self-governing bodies of the national minorities are established at municipal, district and national levels, with legal personality and administrative powers in the educational, linguistic, cultural and religious fields (Act on the Rights of National and Ethnic Minorities No. 77/1993, replaced by Act on the Rights of Nationalities No. 179/2011 (Hung)).

3.  Territorial Autonomy

5.  Far more common is the choice of enhancing territorial autonomy through creation of autonomous territorial bodies in the unitary framework of the sovereign state. Devolution (devolution) of political powers throughout the territory is increasingly common as a form of implementation of the liberal principle of separation of powers in democratic constitutional states. Endogenous and exogenous factors press in this direction: for example, more state tasks in the framework of the welfare state, will to bring institutions closer to citizens, accession to supranational organizations like the European Union, and in ethnically-composed states, the need to protect linguistic and cultural minorities, especially if they are demographically numerous and localized in well-defined geographic areas. In the latter case, the choice of territorial autonomy is generally perceived as helpful, if not necessary, to reduce ethnic and national conflicts and to reconcile the unity and sovereignty of the state with the linguistic, cultural and ethnic diversity of its components. The federal or regional solution is the highest form of the territorial regime of minority protection and may bring administrative borders into line with linguistic ones. It should, however, be noted that the territorial criterion primarily benefits linguistic groups that are historically and compactly settled in an area and that are ‘strong’ due to links with a kin-state beyond national borders (so-called national minorities) and/or for economic, political, cultural or demographic reasons. So if ethnic groups are compactly settled and numerically strong, recognition of territorial autonomy takes the form of allowing self-government to sub-state bodies in areas where these groups reside (one or more municipalities, a province or region, a member state in federal systems). These sub-state levels are given the necessary legislative and administrative competence to conserve minority identity (education, cultural activities, media etc) and those useful to ensure economic and social development of the body itself and the whole population (environmental protection, health, land planning etc). To exercise this competence, the sub-state bodies provide for representatives of ethnic minorities through organs (assemblies and executives). For autonomy to work well, sufficient financial resources are essential and these can be ensured by local government mandate or by collecting state tax revenue. Basically, recognition of autonomy is accompanied by introduction of a special regime protecting the most compact and numerous minority groups who thereby take part in political decision-making and government of ‘their’ area. This regime is usually enshrined in the Constitution or in an act of higher rank than ordinary legislation (a constitutional or organic law), so as to enable more complex procedures, should modifications be necessary. Naturally, autonomy and self-government rights must be implemented in the framework of a unitary state. Territorial autonomy therefore encounters limits in the Constitution, which divides competences between centre and periphery, institutes special organs to solve conflicts of jurisdictions (such as constitutional tribunals or courts) and, in specific circumstances, can provide for state emergency intervention that modifies the powers devolved. In fact, autonomy, including this particular form recognized to entities with stably resident minority communities, cannot be confused with the concept of sovereignty, which is exclusive to the unitary state. Recognizing but simultaneously regulating and limiting autonomy, state power seeks to accommodate ethnic diversity, reduce conflict, prevent secession and avoid break-up of the unitary state.

4.  Conclusion

6.  This contribution focuses on the most significant federal (Russia, Bosnia-Herzegovina, Iraq, India, Ethiopia, South Sudan, South Africa, Switzerland, Belgium, Canada) and regional solutions (Italy, Spain, China, United Kingdom, Finland, Denmark, Croatia, Indonesia), adopted by the Constitutions of multi-ethnic states in order to manage ethnic conflict through devolution of powers to local bodies, variously named.

7.  If on one hand the federal or regional solution makes it possible to achieve the highest degree of territorial autonomy to protect minorities settled in well-defined geographical areas, on the other, high ethnic and religious fragmentation may suggest the need for different solutions in certain contexts. In any case, the aim remains to regulate relations pacifically between the different communities in an area and to avoid centrifugal forces. For example, in Lebanon the Taif Agreement of 1989 put an end to the civil war and established the principle of parliamentary representation of the various ethnic and religious communities, while the preamble of the Constitution defines the unitary character of the state, at the same time regulating administrative decentralization (Constitution of the Lebanese Republic: 23 May 1926 (as Amended to 4 September 2004), Title I Basic Provisions, Preamble, para. A (Leb)). The Constitution of the Republic of Singapore, where the main ethnic groups are Chinese, Malaysian and Indian, only makes Malay the ‘national language’, without giving the corresponding community any special rights or forms of self-government (Constitution of the Republic of Singapore: 9 August 1965 (as Amended to 28 November 2008), Part XIII General Provisions, Minorities, Arts 152–154 (Sing)). In New Zealand, the policy towards indigenous people is based on the Treaty of Waitangi stipulated in 1840 between the British Crown and many Maori tribal leaders, whose language is official in the country. However, relations between the white majority and the indigenous minority have never been good, the constitutional status of the treaty remains controversial and land rights continue to be a major question.

8.  The comparative experience of political and territorial decentralization in ethnically-composed states does not allow a universally valid conclusion; in other words, the success of the devolution of powers to local bodies as a means of minority protection is not certain, also because the process of autonomy is dynamic and evolving. Sometimes and in certain contexts this formula works effectively and for long periods, while in other situations, instead of stabilizing inter-ethnic relations, the same formula can fuel tensions and violent separatist movements resulting in the birth of new, only presumably mono-ethnic states.

B.  The Federal Solution and So-Called Ethnic Federalism

9.  Since there is no theoretical model of a federal or regional state, let us compare the goals of devolution in 20th century experience with earlier versions (federalism). Besides or instead of political-territorial decentralization directed at aggregation and realization of a compromise between central and peripheral instances through organizational structures that ensure a degree of political autonomy in the places where minorities historically live (minorities variously identified as linguistic groups, ethnic, linguistic or national minorities, and nationalities), there has been decentralization directed at disaggregation and a gradual loosening of the constitutional agreement through allocation of increasingly significant autonomy to local authorities in a uniform or, more often, asymmetrical way. As mentioned above, this trend is far from foregone, because it may be devised to prevent or forestall secessionist movements in the interests of the territorial integrity of a state. However, under certain circumstances, it can prelude dissolution of the unitary principle and emergence of new sovereign entities. Moreover, mitigation of constraints imposed by the central government in favour of sub-state entities can be found both in federal systems, such as Canada and Belgium, and in regional states, such as Spain.

10.  It may happen that the legal basis of territorial autonomy is a bilateral international agreement, such as the 1946 Agreement between Italy and Austria on South Tyrol (Gruber-De Gasperi Agreement, 5 September 1946), or a multilateral one, like the decision of the League of Nations in 1920 on the establishment of a form of autonomy for the Åland Islands (League of Nations ‘Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Åland Islands Question’ (1920) League of Nations Official Journal, Special Supplement No. 3 17), the decision of the United Nations in 1952 for Eritrea (UNGA Res 617 (VII) ‘Eritrea: Report of the United Nations Commissioner in Eritrea’ (17 December 1952)), or the 1995 Dayton Agreements (Republic of Bosnia and Herzegovina, Republic of Croatia and Federal Republic of Yugoslavia, General Framework Agreement for Peace in Bosnia and Herzegovina (21 November 1995)) for Bosnia-Herzegovina. In these cases, the implementation phase in national legal systems can be long and complex and can sometimes fail, as in the case of Bosnia-Herzegovina, where division into two federal entities (Srpska Republic and Federation of Bosnia-Herzegovina), commissioned by the United States, European Union and Russian Federation, failed to pacify ethnic and religious conflict between Serbs, Croats and Bosniaks or to encourage internalization of the Agreements.

11.  The stipulation of international treaties aimed at solving minority questions is not a recent event. At the end of the First World War, the League of Nations promoted so-called minority agreements between the main allied and associated powers on one hand, and Poland, Yugoslavia, Romania, Greece, and Czechoslovakia on the other. The agreements contained protection clauses for certain national minorities, for example regarding discrimination, the right to use minority languages, and the right to establish special educational, religious and social institutions. There were also provisions envisaging forms of territorial autonomy, never implemented, such as for Subcarpathian Ruthenia in Czechoslovakian territory. Most of the provisions of the agreements lost effect after the Second World War and, when the United Nations was created, the question of minority protection was given to determination of individual sovereign states. In any case, the international community progressively adopted provisions in favour of rights, not those of minorities as such but rather of persons belonging to ethnic, linguistic and religious minorities, such as Art. 27 of the International Covenant on Civil and Political Rights (1966).

12.  The creation of apparently federal states in order to recognize ethnic minorities living in the corresponding territories (so-called multinational states) is not limited to the framework of democratic states: let us mention for instance the Constitution of the Russian Federation that lists the subjects of the Federation with different degrees of (formal) autonomy (Constitution of the Russian Federation: 12 December 1993 (as Amended to 21 July 2014), Main Text, Section I, Chapter 3 The Federation, Art. 65 (Russ)), and the historical experiences of the former Union of Soviet Socialist Republics (‘USSR’), Yugoslavia and Czechoslovakia. The latter experiences ended in disintegration on failure of the socialist ideology and gave rise to new sovereignties inspired by liberal principles. Nevertheless, problems linked to the protection of ethnic groups are still present on different scales in these new states, as shown by subsequent geopolitical and constitutional events and continuing break-ups, often for ethnic and cultural reasons. Some examples: division of the Czech Republic from Slovakia in 1992; de facto annexation of Crimea, an autonomous republic of Ukraine with a Russian majority, by Russia in 2014; the federal Republic of Yugoslavia (1992), subsequently a confederation called Union of Serbia and Montenegro (2003), which then gave rise to the sovereign Republics of Serbia and Montenegro (2006), after which Kosovo (territory with an Albanian majority) separated and declared its independence from Serbia (2008).

13.  The former USSR, Yugoslavia, Czechoslovakia and the abovementioned Bosnia-Herzegovina are commonly considered examples of ‘ethnic federalisms’ because they all tend to have linguistic boundaries coinciding with areas where minorities live. As a consequence, the minority is actually the majority in those areas and the areas are basically monolingual. Other examples of ethnic federalisms are Iraq (Constitution of Iraq: 15 October 2005 (Iraq)), India (Constitution of the Republic of India: 26 January 1950 (as Amended to 28 May 2015 (India)) and Ethiopia (Constitution of the Federal Democratic Republic of Ethiopia: 21 August 1995 (Eth)), even if the formula is not mentioned in their Constitutions. The Iraqi Constitution delegates establishment of regions to federal law, but expressly recognizes the Kurdistan region (Main Text, Section Five Powers of the Regions, Chapter One, Regions, Art. 117), where there is a substantial Kurdish community. The Indian Constitution recognizes 22 official languages spoken throughout the 29 states and seven territories that compose the Indian Union, as well as English; the states are organized on linguistic lines and are called ‘linguistic states’; the criterion of basic linguistic uniformity is not only observed at state but also at sub-state level; the states can choose one or more official languages among those spoken in their territories and substantial percentage of the population can request that the state declare their language official (Main Text, Part XVII Official Language, Chapter II, Regional Languages, Arts 345–347).

14.  In Nigeria (Constitution of the Federal Republic of Nigeria: 29 May 1999 (Nigeria), as Amended to 29 November 2010), which like India has among the highest linguistic variety in the world, the federal model was suggested by the need to fragment larger ethnic groups, so as to dilute their power into decentralized units and avoid centrifugal forces. By contrast, in Ethiopia the Constitution chose ethnic-based federalism and provides rules for the creation of new mother states, alongside those already recognized (Main Text Chapter Four State Structure, Arts 46–47), as well as the possibility of secession (Main Text, Chapter Three, Fundamental Rights and Freedoms, Part Two Democratic Rights, Art. 39 para. 4). More specifically, in Ethiopia the list of Rights of Nations, Nationalities and Peoples (Art. 39) includes the right to self-determination, the right to use spoken and written languages, the right to express and develop historical and cultural heritage, the right of each community to self-administration through local institutions of government established in the territory that it inhabits, the right to equitable representation in state and federal governments, and the right to secede according to the Constitution.

15.  South Sudan is another country with profound ethnic and religious diversity. Although the term ‘federalism’ does not appear officially, the Constitution sets out a federal or quasi-federal system, organized on three levels (national, state and local) and inspired by the ‘multi-ethnic, multi-cultural, multi-lingual, multi-religious and multi-racial’ nature of the state, where ‘such diversities peacefully co-exist’ (Constitution of the Republic of South Sudan: 9 July 2011, Part One South Sudan and the Constitution, Art. 1 para. 4). Political-territorial decentralization is aimed, among other things, at ensuring unity in diversity, protecting fundamental rights, promoting welfare of citizens and allowing democratic participation in decisions (Part Three Fundamental Objectives and Guiding Principles Chapter III The Decentralized System of Governance, Art. 48). In actual fact, central organ competences are decisively broad, no competences are devolved to the states, and in any case devolution of power has failed to placate interethnic conflict.

16.  The case of South Africa is peculiar, in that the country is divided into nine autonomous provinces that do not coincide with racial or tribal boundaries (Constitution of the Republic of South Africa: 16 December 1996, (as Amended to 1 February 2013), Main Text, Chapter 6 Provinces, Art. 103 et seq. (S Afr)). The provinces are granted the right to self-determination by law (Main Text, Chapter 14, General Provisions Part B, Other Matters, Art. 235); the province of KwaZulu-Natal, historically inhabited by Zulus, is a special administrative structure ruled by the king of the Zulus.

17.  With regard to the best-known multi-ethnic federal systems, it is worth mentioning the examples of Switzerland and Belgium, as well as Canada among non-European countries. In Switzerland, the federal solution was not adopted to contain centrifugal trends, but to aggregate (Federal Constitution of the Swiss Confederation: 12 September 1848 (Switz)). The constitutional reforms of 1996 and 1999 established co-existence of the principle of territoriality and freedom of language: the former derives from the choice of monolingualism and the need to ensure linguistic and territorial uniformity in most of the 26 cantons, the latter is expressly provided by Art. 18, while Art. 4 (Main Text Title One General Provisions) (Main Text, Title Two Fundamental Rights, Citizenship and Social Goals) names four national languages (German, French, Italian and Romansch). In Belgium, social, economic and religious conflict suggested legislative demarcation (1963) of the linguistic border between Wallonia and Flanders, where the official languages are French and Dutch, respectively. The Brussels-Capital Region has remained bilingual. The federal Constitution in force (Constitution of the Kingdom of Belgium: 17 February 1994 (as Amended to 6 January 2014) (Bel)) provides for four linguistic regions (Dutch, French, German and the bilingual Brussels-Capital), three communities (French, Flemish and German) which are entitled to legislative powers in the cultural field, and three territorial regions (Wallonia, Flanders, Brussels) which are entitled to legislative powers in social, economic and territorial affairs (Main Text, Title I Federal Belgium, Its Components and its Territories, Arts 2, 3, 4). As far as the French and Flemish communities are concerned, the Belgian system chose the territorial criterion and the monolingual regime, although the Constitution also states the principle of freedom of language and gives the law jurisdiction on the languages used in the public administration and judiciary (Main Text, Title II Belgians and Their Rights, Art. 30).

18.  In Canada, ethnic and linguistic differentiation and recognition of the population’s bi-national nature are the foundations of the federal system (British North America Act: 29 March 1867 (as Amended to 2 February 1996) (Can), now the Canada Act). Canadian federalism was conceived from the start as asymmetric, aimed at meeting the demands of Quebec’s francophone population as a distinct society, which is locally the majority but nationally the minority. It is traditionally seen as the result of a ‘political compromise’ between two founding peoples: protestant Anglophones and catholic Francophones. Nevertheless, the choice of federalism and a synthesis between the territorial criterion (mainly applied in the Francophone-majority province of Quebec) and personal criterion (applied in the other Anglophone-majority provinces that are bilingual) failed to completely placate socio-cultural conflict, as shown by attempts at secession by Quebec in 1980 and 1995. The Supreme Court reacted to these attempts by highlighting the particular historical and political situation of the country and recognizing the legitimacy of negotiated secession according to the principles of federalism, democracy, constitutionalism, rule of law, and protection of linguistic minorities. All these principles pervade the Canadian legal system and influence interpretation of the Constitution (Reference Re Secession of Quebec Case (Can) (1980) 217). Besides the Francophone and Anglophone communities, the Canadian population also includes so-called autochthonous peoples, whose presence preceded arrival of the European colonizers. With the declaration of Nunavut Territory in 1999, the Canadian government recognized the right to self-rule, which includes the exercise of competences not only in linguistic and cultural affairs, but also in the social and economic fields, to the institutions of this territory, inhabited by Inuit.

19.  Generally speaking, rights to territorial self-administration in federal states allow sub-state units to adopt their own constitutions in line with the principles of the federal Constitution, and often give them legislative power in matters not reserved to the central state, as well as administrative and judicial powers. For example, in Belgium the legislative body of each community has competence in matters like education, culture and so-called personalized matters where the use of language is important (eg healthcare, social welfare, family policy). In Canada, the provinces can avoid the effect of constitutional amendments proposed by the central power on matters related to the cultural field (so-called opt-out procedure). In Switzerland, the cantons are empowered with competences like language, culture and education. In South Africa, the provinces enjoy autonomy in exclusive legislative competences regarding certain provincial cultural matters (eg archives, libraries, museums, sport facilities) and in concurrent national and provincial legislative competences regarding identity-related matters (eg education, indigenous law, language policy, media services).

20.  The exercise of all these powers is ensured through autonomous financial resources and institutions of the single member states, starting with representative bodies exercising legislative competence. Of course there are some exceptions: for example, the so-called centripetal federalism of the Indian Union favours the central bodies, who have competence, among others, to denominate linguistic states, whereas the so-called ethnic federalism of Ethiopia is currently unable to function ‘not because it is too ethnic but because it is not sufficiently federal’ (Turton 29).

C.  The Regional Solution and Its Forms

21.  Some regional systems are also inspired by the prevalent principle of territorial linguistic uniformity, especially if they are accustomed to dealing with the minority claims.

1.  Strong Forms of Territorial Autonomy

22.  This is the case of Spain, which after proclaiming Castilian the official language, envisages other co-official regional languages, in line with autonomous community statutes (Constitution of the Kingdom of Spain: 6 December 1978 (as Amended to 27 September 2011), Main Text Introductory Part, Art. 3 (Spain)). The languages spoken in Catalonia, the Basque Country, the Balearic Islands and the communities of Valencia and Galicia are official in the territories of the respective Comunidades autonomas and equivalent to Castilian Spanish in all fields of public life at local level. Even in Spain, however, the solution chosen does not seem to have contributed substantially to peaceful coexistence among languages and their speakers, as illustrated by a vigorous spirit of independence in the Basque Country and the more recent secessionist claims of Catalonia, which were blocked by the Madrid government and the Constitutional Tribunal (Impugnación de disposiciones autonómicas n.º 1389-2013 STC 42/2014 (2014) 77).

23.  In some special Alpine regions of Italy, the regional system was determined in 1948 by the presence of national minorities (Constitution of the Italian Republic: 22 December 1947 (as Amended to 20 April 2012) (It)). In Trentino Alto Adige/Südtirol and Valle d’Aosta/Vallée d’Aoste, German and French, respectively, were declared co-official languages with Italian (Decree of the President of the Republic No. 670/1972, Art. 99 (It); Constitutional Act No. 4/1948, Art. 38 (It)). Moreover in 2001, with reform of Art. 116 of the Constitution that established bilingual denomination for these two regions, the constitutional legislature implicitly confirmed the decision of the constituent framers and persistence of the reasons for recognition of special autonomy in those territories.

24.  Even in jurisdictions that traditionally do not recognize political autonomy to territorial bodies, recent implementation of regional decentralization can contribute to the protection of minority languages and groups. For example, in the United Kingdom, the devolution of powers established in 1998 with approval of the Government of Wales Act and the Scotland Act (replaced in 2006 and 2012, respectively), in favour of Wales and Scotland, initiated an exploitation of territorial claims and political and administrative autonomy, advanced by the nationalist parties in the 1960s and 1970s in response to the demand for recognition of the specific historic and cultural identity of those areas. The granting of legislative and administrative autonomy to the Scottish region did not prevent a referendum on secession from the United Kingdom (18 September 2014) that ended, however, with victory of the Unionists.

25.  Croatia belongs in the panorama of regional states having a rich ethnic and linguistic mosaic but a relatively small total population. Although this is not strictly ethnic regionalism, the laws take care to protect minorities. The preamble of the Constitution lists 22 national minorities (Constitution of the Republic of Croatia: 22 December 1990 (as Amended to 1 December 2013), Part I Historical Foundations, Preamble, para. 2 (Cro)); assigns the task of defining official languages and scripts for local use, besides Croatian and Latin script, to legislation (Part II Basic Provisions, Art. 12); recognizes the principle of equality of minorities, the right to elect their political representatives, and freedom to demonstrate their nationality, use their language and script, and express their cultural autonomy (Part III Protection of Human Rights and Fundamental Freedoms, Art. 15 paras. 1, 3, 4), delegating formulation of the most appropriate tools for transforming constitutional principles into constitutional law (Part III Protection of Human Rights and Fundamental Freedoms, Art. 15 para. 2; 2002 Constitutional Act on the Rights of National Minorities in the Republic of Croatia). With regard to the link between autonomy and protection of ethnic groups, the Constitution envisages decentralization in the form of regions and municipalities (Part VI Local Government Organization and Local Self Administration) and establishes that the minority population must constitute at least one third of the total population in order to enjoy equal official use of the minority language locally (Part VI Local Government Organization and Local Self Administration, Art. 12 para. 1; 2002 Constitutional Act on the Rights of National Minorities in the Republic of Croatia).

26.  In all the above examples, the legal basis of rights to self-government lies primarily in the autonomy statutes, which are sources that rank higher than ordinary legislation (ie organic laws in Spain and constitutional laws in Italy for the regions mentioned). At institutional level, the regions have an elected legislative body and an executive body, and are usually granted power to legislate on matters listed in the Constitution, administrative power and some financial autonomy. The regions are generally listed in the Constitution, though there may be exceptions (eg Spain). The regions are mainly autonomous in matters concerning the use of language in local public relations, education and cultural development, although intervention in areas more directly related to social and economic policies of regional interest may also be granted.

27.  Among the rights to self-government, recognition of ‘regional’ (along with national) citizenship to members of minorities is of particular importance: under certain conditions, this provision is envisaged by the special statute of autonomy of the Åland Islands of Finland, where Swedish monolingualism is in force (Act on Autonomy No. 1144/1991 (Fin)). The citizens of the large Swedish community can vote in provincial and municipal elections, have free access to land ownership, and are granted freedom of enterprise and the right to exercise certain professions. This favours control of the area and indigenous resources, while maintaining cultural identity. Insularity is the basis for the special statute of autonomy recognized to the Faroe Islands of Denmark (Home Rule Act No. 137/1948 (Den)): besides official status of the Faroese language, self-government rights include limited judicial autonomy, the power to conclude agreements with foreign states on trade matters and fisheries, and local government control on Danish legislation prior to entry into force in island territory.

2.  Weak Forms of Territorial Autonomy

28.  Much less attention is paid to communities speaking other languages and the statute of territorial self-government rights is weaker when devolution of powers to the regions is limited to administrative autonomy, as in France, which traditionally does not recognize the existence of linguistic minorities, and in China, which only formally guarantees the rights of numerous ethnic groups living there. More specifically, the regions of France, including Corsica, where there is a large community speaking the Corsican language, are not allowed to exercise legislative power and the Conseil Constitutionnel (Decision No. 91-290 DC (1991) 6350 (Fr); Decision No. 2001-454 DC (2002) 1526 (Fr)) did not hesitate to declare unconstitutional the Corsican statute of autonomy, as it recognized the existence of a ‘Corsican people’ inconsistent with the notion of ‘French people’ contained in the Constitution (Constitution of the French Republic: 28 September 1958 (as Amended to 23 July 2008) (Fr)).

29.  The Constitution of China (Constitution of the People’s Republic of China: 4 December 1982 (as Amended to 14 March 2004) (China)) guarantees the rights of 52 recognized minorities, including territorial autonomy, and expressly prohibits secession (Main Text, Chapter One General Principles, Art. 4; Chapter Three The Structure of the State, Section 6 The organs of Local Self-Government of National Autonomous Areas, Arts 112–122; Regional Ethnic Autonomy Law 1984; Anti-Secession Law of the People’s Republic of China 2005 (China)). However, the regions are only administrative bodies and their autonomy is subject to strict interpretation by the central state and Communist Party. Autonomy is therefore not effective, as demonstrated in the case of Tibetans and Uighurs living in autonomous regions.

30.  Indonesia has among the highest ethnic, linguistic and religious diversity in the world. The unitary Republic of Indonesia (Constitution 18 August 1945 (as Amended to 17 August 2002), Chapter I Form of the State and Sovereignty, Art. 1 para. 1 (Indon)) recognizes regional and local self-governed units, regulated by law (Chapter VI Regional Authorities, Art. 18). In particular, 90 per cent of the population of the Aceh region belongs to the Aceh ethnic group, strongly characterized by the Islamic religion. Law No. 18/2001 on Special Autonomy for the Province of Aceh Special Region (9 August 2001) granted this region an autonomy ‘packet’ that also included a series of economic benefits linked to income from the sale of natural gas. Since the law was never applied, because Aceh nationalists considered the autonomy granted too weak, a subsequent law (Law No. 11/2006 for Self-Government for Aceh (11 July 2006)), adopted among other reasons to temper secessionist forces, grants the autonomous government of the region all the competences not expressly reserved for the central state (justice, foreign affairs, defence, monetary and fiscal policy, etc.) according to rules actually typical of federal states.

D.  Concluding Remarks: Territorial Autonomy Requires a Truly Democratic Constitutional State

31.  In its many practical applications, territorial autonomy in multi-ethnic states is often a solution used to balance the centripetal and centrifugal forces and manage social conflicts. However, it is not a magic formula and offers no automatic promise of success. Several aspects should be taken into account to truly promote inter-ethnic coexistence and try to avert the risk of secession, which often lurks in the background in federal states where broad autonomy is normally recognized to member states.

32.  First, territorial decentralization should not only be formally scheduled at constitutional or legislative level, but actually implemented with contextual establishment of a strong central power and devolution of effective forms of political autonomy to local authorities. The partially realized and quasi-failed examples of China, Bosnia-Herzegovina, Ethiopia, Iraq (to name a few) demonstrate that constitutional provisions are not enough if the general framework is not structurally prepared to welcome decentralization and there is no clear political will.

33.  Second, common identity values are important to reconcile state unity with the diversity of its components (territorial, social, ethnic). The status of national civic citizenship should not leave room for recognition of distinct ethnic or regional citizenship, because apart from very specific long-standing contexts, such as the Åland Islands, recognition of this type and the demarcation of administrative boundaries corresponding to linguistic boundaries can be problematic and promote secessionist movements.

34.  Third, improved mediation and arbitration mechanisms (political and judicial), including the role of the supreme and constitutional courts, can be useful to solve conflicts between the centre and periphery and to promote intergovernmental cooperation, so as to achieve the right balance between self-rule and shared-rule and help implement decentralization as a means of minority protection.

35.  Fourth, bilateral agreements between neighbouring states for the protection of their national minorities (eg friendship agreements) and enhancement of cross-border cooperation–as provided by the so-called Madrid Convention 1980; European Charter of Local Self-Government 1985, Art. 10; Framework Convention for the Protection of National Minorities 1995, Art. 18 in the framework of the Council of Europe—can be effective tools for strengthening links between communities divided by a political boundary and for promoting mutual recognition of minority issues among the state parties. For ethnic groups artificially dismembered between neighbouring states, it can be helpful to institutionalize interstate cooperation through permanent trans-border regions with their own powers (eg Euroregions): such organizational solutions can represent linguistic and cultural ties, as well as common social and economic interests.

36.  First of all, however, any form of devolution should be in the framework of the constitutional state and the fundamental values of a democratic society: rule of law, political pluralism and respect for human rights, including those of people belonging to minorities. These values are the basis of the compromise embodied in the Constitution and cementing majority and minority coexistence; if that compromise is broken, not only the devolution plan fails, but the state itself.

37.  On the other hand, the Constitution cannot be considered a ‘straightjacket’ (Reference Re Secession Quebec (1980) 217 (Can)) and cannot force the territorial and ethnic components of a people together. Thus mechanisms aimed at normalizing (Mancini 625) or domesticating (Mastromarino 639) the process of self-determination cannot be excluded, so that if secession is inevitable, it may be realized in a shared and negotiated manner, as in the cases of separation of the Czech and Slovak Republics or Serbia and Montenegro, rather than unilaterally, as in the cases of Kosovo and Crimea. After all, hardly any new sovereignties arising from secessionist movements are mono-ethnic, so the search for territorial or other formulas for integration and coexistence is likely to re-emerge in the new states.

Select Bibliography

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