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Ethnic Conflict in the Horn of Africa: Nharnet Team (Feb 13, 2005) |
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Governance and Conflict Resolution By Kumar Rupesinghe Nharnet Team (Feb 12, 2005) |
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Governance and Conflict Resolution By Kumar Rupesinghe Nharnet Team (Feb 10, 2005) |
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Did You Know This? - 4 The Right to Autonomy: Chimera or Solution?
By Hurst Hannum (Professor at the Fletcher School of Law and Diplomacy at Tufts University, Massachusetts, USA. The material was disseminated by the UN University.) Nharnet Team (Feb 19, 2005)
The United Nations University, UNU, is an organ of the United Nations established to be an international community of multicultural scholars engaged in research and dissemination of knowledge. Nharnet.com is pleased to present to its readers selected articles from UNU’s research papers on governance and conflict resolution.
Some web site reports have indicated that the new Eritrean Democratic Alliance is adopting decentralization as a structure of governance in post-PFDJ Eritrea. The material below provides deep insight into the meaning of decentralization as an evolving third and pragmatic definition of the old and nowadays controversial concept of the right of peoples to ‘self-determination’, which is also well described in this text. The summarized quotations at the start of the reading below are selected by Nharnet Team to give the reader a quick picture of what Professor Hannum is about to teach through this writing. All the emphases added in the form of underlining are by Nharnet Team. Good reading. *
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One of the most frequently voiced solutions to ethnic conflict, at least where there is some degree of territorial separation among competing groups, is to grant "autonomy" to the minority group. As will be seen, autonomy can include a wide range of political, economic, and other powers. However, in order to assess what degree of power should be devolved in a particular situation, one must focus on the underlying goal that creating autonomous structures is designed to serve.
On a continuum of political power, many analysts would place autonomy higher than the ability to protect minority rights but lower than the independent statehood which may result from the exercise of a people's right to self-determination. This is probably accurate, although it should be remembered that autonomy is not a term of art in international law, and that the term has been used to describe a plethora of different arrangements.1
Most ethnic conflicts grow out of the dissatisfaction of a group which is a numerical minority within an existing political unit (normally a state) with its share of political and economic power vis-à-vis the larger society. This relative powerlessness may be combined with a desire to strengthen or renew shared cultural characteristics, such as language or religion. In many situations, the minority views itself as having been subject to varying degrees of repression under the existing system.
The development of autonomous arrangements to serve the interests of a territorially based group (which is often, although not necessarily, ethnically and culturally distinct from the dominant society) may respond to three primary needs. In its broadest sense, autonomy may be an expression of the self-determination of a people or society, where that people's choice falls short of independent statehood. Autonomy may also be a means of ensuring that a state is truly democratic, so that all significant segments of society are able to participate effectively in the political and economic decisions which affect their lives. Finally, autonomy may be viewed primarily as a means of ensuring that fundamental human rights are protected, by ensuring that the larger polity can only intervene within the autonomous community within certain specified limits.
Democracy and democratization seem to be on everyone's lips today, and it may be appropriate to begin with an analysis of autonomy as a component of democratic governance. In this context, autonomy can exist within a wide variety of structures, from classic federalism to arrangements of confederation, consociation, devolution, or decentralization. Our concern today, however, is not to define these terms more specifically,2 and the particular form of autonomy adopted may depend on historical and other factors as well as upon the relative substantive powers of the central and autonomous governments.
Autonomy as a response to the need for more democratic forms of government may be based on either regional or ethnic concerns, although there may evidently be an overlap in these categories when an ethnic group is regionally concentrated. When the primary concern is to ensure that the legitimate interests of peripheral regions are adequately addressed by the central government, devolution of power to sub-state entities is clearly consistent with democratic theories and the ultimate sovereignty of the state as represented by the central government.
There is no democratic requirement that a state be organized as a "unitary" system or led exclusively by a strong central government. The commitment to a unitary state expressed publicly by many central governments is unpersuasive as a theoretical paradigm, unless it is supported by arguments based on functional efficiency or political necessity. It is often said that "the government is best which governs least," and ensuring that issues are considered by the lowest appropriate level of government has long been thought to be politically desirable. 3
The idea of creating separate institutions to respond to ethnic concerns, on the other hand, is not necessarily compatible with traditional notions of democracy. Indeed, there is no political role for ethnic minorities as such in either capitalist or socialist doctrine, which are based respectively on the individual or the masses, not on discrete non-economic units such as linguistic or cultural groups. The traditional Westminster model of democracy is based strictly on "one person, one vote"; its individualistic orientation does not encourage the representation of groups or segments of society per se.4
Of course, one may wish to redefine democracy in order to avoid situations in which identifiable segments of society seem to be permanently excluded from power, and protection of individual rights, as well as majority rule, is essential to democracy. The Westminster model works only when political parties can compete meaningfully for power and actually achieve it on a regular basis. It is the likelihood that today's majority will become tomorrow's minority that is the ultimate brake on the abuse of power by the government of the day; where this alternation of power does not exist - as was the case in Northern Ireland, where the nationalist Catholic minority had no chance of sharing power with the unionist Protestant majority, despite a formally fair electoral system - merely free and fair elections may not be sufficient.
Ultimately, of course, demands for democracy based on ethnicity may threaten the state itself. Appeals to nationalism, and even racism, are often couched in terms of expressing the democratic will of the majority, although one cannot maintain that democracy requires ethnic, religious, or linguistic purity. The conclusion must be that ethnically based autonomy arrangements are probably not required to achieve democracy, at least in its narrow definition as rule by the majority. This is important, for many contemporary demands for autonomy respond as much to decades of non-democratic government as they do to legitimate concerns over ethnic identity or minority rights. In such situations, one should look carefully at what purpose autonomy is designed to serve and distinguish between demands for greater political power for its own sake and demands for democratic government.
Self-determination is the right of peoples to "freely determine their political status and freely pursue their economic, social and cultural development.5 Although it is beyond the scope of this paper to analyse the precise meaning of self-determination today, even a preliminary understanding of this principle requires a certain historical perspective. While its philosophical origins may be traced back farther, self-determination became a political force in the nineteenth century. It was a principle of political organization openly based on ethnicity, most often expressed in linguistic and religious terms. The "nation-state" - an independent entity which corresponded to an ethnic, cultural, linguistic, and historically identifiable nation became the paradigm.
However, even strong advocates of the principle of self-determination, such as US President Woodrow Wilson, subordinated self determination to larger geopolitical concerns, and the victors at Versailles recognized claims to statehood based on their own views as to what arrangements might be more likely to keep the peace, or serve other political concerns, rather than on any inherent "right" of peoples to statehood. Those groups or nations which did not achieve statehood had to be content, in some cases, with specific rights guaranteed to them as minorities. And, of course, claims for self determination were recognized at Versailles only in so far as they pertained to new, altered, or defeated states; they were not considered to be universally applicable.
The United Nations Charter refers to the "principle" of self determination only twice, although this vague principle soon became a widely recognized right. This right, however, had a different philosophical and political basis than the ethnically based principle of self determination developed during the preceding century.
The right to self-determination recognized by the United Nations is best described as an absolute right to decolonization, based on territory rather than ethnicity.6 While there were exceptions to this territorial principle (e.g., the division of British India and the former Belgian colony of Rwanda-Urundi), ethnicity was consciously deemed to be irrelevant to the overriding goal of freeing African, Asian, and other non-self-governing territories from European control. The principle of the inviolability of territorial integrity - irrespective of the ethnic composition of the population - is invariably found in conjunction with UN references to self-determination, and this principle was forcefully reiterated in 1964 in one of the earliest and most important resolutions adopted by the Organization of African Unity.
Despite the practical limitation of international recognition of the right to self-determination in the colonial context, the legal and political documents which proclaim the right are expansive in their scope. The two international covenants on human rights (which remain the only legally binding treaties to proclaim a right of self determination) state, "All peoples have the right of self-determination." Self-determination thus remains a force in the post-colonial era, although those who would now claim its benefits seek to return to the pre-1945 ethnic basis of self-determination, rejecting the UN's insistence on the territorial integrity of existing entities during the colonial era.
In the present context, it is perhaps sufficient to mention some of the unresolved issues that confront anyone who seeks to invoke the right of self-determination today. First, of course, is the definition of the "self." Must the self be ethnically homogeneous, or is the majority in an existing multi-ethnic state the appropriate self to decide that state's political future? Is there not a right to remain together as well as a right to separate? If the self is determined ethnically or culturally, then why should existing administrative borders which surround ethnic minorities be considered sacrosanct, as most commentators seem to assume? If one supports the right to self-determination of Croats in Yugoslavia, should not this right also extend to Serbs in Croatia? Or to Albanians in Serbia?
Once the appropriate self is identified, there remains the question of what the self has the right to determine. In the examples just cited, there is an assumption that self-determination may lead to secession, but this assumption should not be accepted automatically. As already noted, the principle of national unity and territorial integrity has been reaffirmed by the United Nations and other international bodies at least as frequently (and as fervently) as has the right to self-determination.
Self-determination is a relative, not an absolute, right, and different levels of self-determination may be appropriate for different selves. Should the right of self-determination as defined by international law always permit secession? Or should secession be seen solely as a matter to be determined within the political discretion of the states and communities involved?
It is noteworthy that statements of the European Community with respect to the recognition of new states which formerly constituted parts of the Soviet Union or Yugoslavia are carefully framed in the context of the dissolution of an existing state, not the secession of one part of a state from the rest. Whether or not this position accurately reflects the factual situation, it does reflect the continuing fear on the part of the international community that any recognition of a right to secession would invite widespread chaos. If secession is excluded as a legal right encompassed within the right to self-determination, this does not necessarily imply that self determination has lost its relevance. Rather, it suggests that we may be in the process of developing yet a third definition to the right of self-determination, distinct from both the ethnically based approach of the nineteenth century and the territorially based anti-colonialism of the post-1945 period.7
Although it is too early to conclude that such a newly defined right has crystallized in international law, the implications of such a development for the resolution of ethnic conflicts on the basis of devolution of power is obvious. Under this new definition, autonomy and self-government may be the primary expressions of a people's right to self-determination, although the definition remains too vague at present to offer us much guidance as to the degree of autonomy which it may require.
The third reason for asserting a right to autonomy is to protect human rights. Here, too, developments since 1945 have tended to ignore ethnicity and the collective or community aspects of rights in favour of a more individualistic orientation. It is significant that the only widely accepted formulation of minority rights, found in article 27 of the Covenant on Civil and Political Rights, refers to "persons belonging to" minority groups, not to rights of the groups themselves.8 This, of course, is in stark contrast to the post-Versailles concern with minority rights, as embodied in the so-called Minorities Treaties imposed on defeated or new states after World War I and whose implementation was a concern of the Council of the League of Nations.
In the past few years, the international community has recognized that the issue of minority rights needs to be addressed more directly, and several instruments do set forth norms related to the rights of national and/or ethnic, religious, and linguistic minorities.9 These include the document adopted in 1990 at the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Co-operation in Europe, and the proposal for a European Convention for the Protection of Minorities submitted by a group of experts to the Council of Europe in 1991. A draft European Charter for Regional or Minority Languages is also being prepared under the auspices of a Council of Europe committee of experts, and a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities was formally adopted by the UN General Assembly on 18 December 1992.
Pending adoption of these and other instruments and the creation of mechanisms for their effective enforcement, there remain many "individual" rights of particular importance to ethnic communities. More than 100 countries have ratified the two international covenants on human rights, which guarantee, inter alia, to culture, privacy, language, association, religion, and education.
The fears of many ethnic groups are based on violations of such fundamental rights as the right to due process, freedom from discrimination, and personal liberty and security. Governments which discriminate against certain groups or which repress linguistic or cultural expression obviously contribute to ethnic conflict and violate "minority rights," although redress for such violations does not depend on the existence of special categories of group rights.10
An increasingly important human right is the right to "effective participation" in the economic and political life of a country. Originally developed in the context of consulting rural populations with respect to economic development plans, this right also is rooted in article 25 of the Covenant on Civil and Political Rights, which deals with participation in public affairs.11
What should be underscored is that this is a right to effective participation, not just the ability to cast a vote freely. Participation is not control, but it also is more than the purely numerical democracy suggested by the Westminster model. Like the emerging right to autonomy, the right to participation is not yet well defined, but it has great potential as a tool for ensuring that people - whether individuals or group - have a voice in the formulation of policies which directly affect them.
Demands for autonomy generally contain elements of all three categories of needs identified above: the protection of human rights; guarantees of real democracy; and responsiveness to the principle of self-determination. However, "autonomy" should not be viewed as an end in and of itself. Too often, it is used merely as a catchword, an ill-defined example of what Professor Jauregui has called "the pulverization of the classic concept of sovereignty." To be meaningful, demands for autonomy should respond to the specific needs of minority groups and individuals. These needs must include, at a minimum, respect for what might be termed the "traditional" human rights: the right to life and liberty and to freedom from discrimination. Added to these are other basic rights of freedom of association and religion.
However, autonomy can and should include more, although precise arrangements will vary with the particular circumstances. Greater group or regional control over language, education, and local decision-making power is often essential to provide ethnic groups with sufficient control over their own lives and cultures so that they need not feel threatened by the dominant society. At the same time, new forms of effective participation in the central government may need to be developed - which presupposes that a central government does retain legitimate authority to act in some spheres which will have an impact on ethnic or regional communities.
Greater devolution of powers to sub-state regions, or even separation, should remain a possibility, but one that can become reality only after a lengthy process in which the true wishes of all parties can be accurately ascertained. This may mean a long and cumbersome series of referenda or plebiscites, but it is the only way to ensure that fundamental decisions will accurately reflect the wishes of the people involved, as opposed to the often opportunistic demands of the political leaders of the moment.
Autonomy is not a panacea. It is, nevertheless, an appropriately flexible vehicle for constitutional and political change. In order to deal successfully with ethnic conflict, I would join Professor Darby's "plea for pragmatism," even while recognizing that extremism and rigidity might be more politically attractive positions to adopt and maintain. Autonomous arrangements will succeed in defusing conflict only where they are based on mutual respect and tolerance, and that should remain the ultimate goal of attempts at meaningful conflict resolution.
Notes 1. See, generally, H. Hannum and R. Lillich, "The Concept of Autonomy in International Law," American Journal of International Law 74 (1980): 858, reprinted in Y. Dinstein (ed.), Models of Autonomy, Transaction, 1981. 2. An excellent summary of these concepts may be found in C. Palley, Constitutional Law and Minorities, Report No. 36 (London: Minority Rights Group, 1978). 3. This "principle of subsidiarily" has been endorsed by the European Union to guide future development of its institutions and competence. 4. Of course, even very individualistic societies such as the United States may deviate from the one-person, one-vote principle when other factors are sufficiently important. The US Senate is geographically based on states, irrespective of population, and recent legislation designed to increase minority representation in Congress encourages the delimitation of electoral boundaries to facilitate the election of minority candidates rather than to respect geographic coherence. 5. International Covenant on Economic, Social and Cultural Rights, art. 1; an identical article is found in the International Covenant on Civil and Political Rights. 6. One of the most important assertions by the United Nations of the right to self-determination is contained in General Assembly Resolution 1514 (XV) of 14 December 1960, which was entitled Declaration on the Granting of Independence to Colonial Countries and Peoples. 7. H. Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia: University of Pennsylvania, 1990). 8. The only other group-oriented international instrument is the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which has been ratified by over 100 states but contains no effective implementation machinery. 9. See, generally, H. Hannum, "Contemporary Developments in the International Protection of the Rights of Minorities," Notre Dame Law Review 66 (1991): 1431. 10. Unfortunately, one of the least well-known international bodies concerned with the protection of minority rights is the Committee on the Elimination of All Forms of Racial Discrimination, whose mandate extends to non-discrimination towards ethnic as well as racial groups. While the Committee is able to do little more than make recommendations to states which are parties to the Convention on the Elimination of All Forms of Racial Discrimination, its examination of periodic state reports does present an opportunity for non-governmental organizations to challenge a government's view of minority relations in a particular state. 11. See, generally, H. Steiner, "Political Participation as a Human Right," in Harvard Human Rights Yearbook 1 (1988): 77.
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