How do you retain power under autonomous arrangements? US attorney Eva Herzer explores some formulas in international law
For over a decade, His Holiness the Dalai Lama has publicly stated that he seeks to negotiate "genuine self-government" or "genuine self-rule" for Tibet within the context of the Chinese state. His Holiness's position responds to the late Deng Xiaopeng's comments that everything is negotiable except for independence and takes into account the fact that time is running out for the Tibetan culture's survival in occupied Tibet. No doubt, His Holiness's decision to seek a resolution short of independence is strongly influenced by His assessment of the relative political and economic strengths of China and Tibet and the international community's long-standing failure to stand up for Tibetan independence.
Self-government of a people (such as the Tibetans) within the framework of a sovereign state is generally referred to as autonomy. Few political terms evoke stronger and more heated reactions in the Tibetan community than that of autonomy. This, of course, is not a surprise given that Tibetans have suffered unspeakable human rights violations and cultural destruction in the so-called Tibet "Autonomous" Region (TAR), where Tibetans have minimal rights to govern themselves in theory and virtually none in practice. On the other hand, the self-government or autonomy proposed by His Holiness, in His 1988 Strasbourg statement, provides for Tibetan control over most matters affecting Tibet. If autonomy can take such different forms, what then is autonomy?
Despite the fact that well over 40 autonomous arrangements have been created in the 20th century, the term "autonomy" has no generally accepted meaning in international law. One autonomous arrangement can be completely different from the next. Autonomy is a vague, if not meaningless, concept unless and until it is defined on a case-by-case basis as a particular distribution of governmental powers between two governments: The government of the people who seek self-government, usually referred to as the autonomous government, and the government of the sovereign or larger state, which I will refer to as the state government. Some of the major governmental powers which must be addressed in the drafting of an autonomous agreement are the power to control cultural affairs, education, the official language, national symbols, health and social services, the economy, taxation, natural resources, environmental policy, transportation, postal and telecommunication systems, law and order, administration of justice, currency and monetary policy, determination of citizenship, foreign policy, defense, passports and visas, customs, border control and immigration, as well as political rights.
By the same token, taking a position for or against autonomy is somewhat meaningless, unless the autonomy proposed or opposed is specifically defined as a particular distribution of governmental powers. This is because "autonomy" can provide for an allocation of power to the autonomous government that approaches virtual independence, as it does in the case of Liechtenstein and Andorra, or virtual subjugation, as it does in the case of the present Tibet Autonomous Region.
The International Committee of Lawyers for Tibet (ICLT) recently prepared a study of 34 autonomous arrangements and analysed the distribution of governmental powers in each case. To avoid any misunderstandings, I would like to make it clear that this study does not suggest that Tibetans should adopt one model of autonomy over another, for each situation is historically, politically, socially, economically and culturally unique. Nor does ICLT or I take the position that Tibetans should attempt to negotiate an autonomous arrangement with China, rather than pursue independence or other options. Rather, the intent of the study is to illustrate how autonomy has been practiced in various situations around the world, to show what distributions of governmental powers are possible and importantly to point out various issues which must be addressed if an autonomous arrangement is to be successful.
Tibetans, as a distinct people, have the right to self-determination, that is to decide on their future political, social and economic status. Pursuant to that right, Tibetans are entitled to choose a particular form of autonomy, independence, or they could theoretically opt to become fully integrated into the Chinese state. What options the Tibetans choose and how they make that choice, whether through their elected officials in exile, by decision of His Holiness the Dalai Lama or through a popular referendum, is up to them. It is important to note that the option is not between self-determination and independence, or between self-determination and autonomy (sometimes referred to as the "Middle Way" by His Holiness). Rather the option is between various forms of autonomy, independence or, theoretically, integration into the Chinese state. The right to self-determination is the legal basis for these options, not an option in itself. As Tibetans are well aware, unfortunately, rights under international law are not uniformly enforced and appropriate enforcement mechanisms have yet to be put in place. Thus even though Tibetans have the legal right to choose their future political status, this choice is restrained by the political realities of China and Tibet and by the political will of the international community.
Currently the Tibetan government is examining the option of some form of autonomy for Tibet and hopes to engage the Chinese government in negotiations in this regard. It is therefore important for Tibetans to inform themselves and to consider the various possibilities for division of governmental powers in an autonomous arrangement for self-governance. The following brief summary highlights the major governmental powers which must be considered in negotiating an autonomous arrangement and it highlights how other peoples have resolved the allocation of these powers.
Cultural preservation lies at the foundation of almost every struggle for self-determination. The power over cultural affairs is the only governmental function over which each and every autonomous government studied has control. In some cases, however, such as the TAR and Xinjiang Uighur Autonomous Region, this control is a matter of right, but not of practice.
In the great majority of the situations studied, education is entirely controlled by the autonomous government. Most autonomous governments insist on controlling education in order to guarantee survival of the native language and the cultural identity of their people. For example, the Swedish speaking Aland Islands, an autonomous province of Finland under the 1991 Act of Autonomy for Aland, administer their own schools, where instruction is in Swedish, with English as a second language. Finish is offered as an optional language.
Several examples underscore the importance of providing sufficient second language instruction, especially in remote regions, so as to open post-secondary school educational opportunities to students. In Micronesia, an associated state of the United States (US) under the 1982 Compact of Free Association, education is within the exclusive jurisdiction of the autonomous government. Students are taught in each of the applicable Micronesian languages and English is required as a second language. Due to the geographical isolation and the low quality of some of the English instruction, however, many Micronesians graduate without proficiency in English. Because relatively few books are available in the Micronesian languages, educational levels remain low and students are not adequately prepared for a college education, which is only available abroad.
The TAR is one of the few examples where the autonomous government does not have ultimate control over education. It may plan and implement educational programs but does not have ultimate control since all such programs must comply with Chinese state guidelines.
Language is a key component of cultural identity and control over language is often critical to effective self-governance. In some autonomous arrangements the state's language is the sole official language, as in the TAR, where the official language is Mandarin. In others, the language of the people is the only official language, as in Kashmir where the official language is Urdu. Similarly in Quebec the official language is French even though the rest of Canada is English speaking. In some cases, such as the Aland Islands, the people's language is the official language, but translation from and into the state's language is available for certain official business. A number of autonomous arrangements provide for several official languages so as to meet the needs of the people and the state.Such arrangements are found in Hong Kong, the Cook Islands, Micronesia, Belgium, Greenland, Scotland, Tatarstan, Catalonia, the Basque Country and Puerto Rico.
To many peoples, national symbols, such as flags, seals and anthems, are a vital and critical part of their identity. Therefore, most peoples do have their own national symbolism. Prohibitions of national symbols are found only rarely, except in the Chittagong Hill Tracts, which entered into a peace agreement with Bangladesh in 1997, the TAR and Northern Ireland.
HEALTH AND SOCIAL SERVICES
In many cases, health care and social services are provided by the people's autonomous governments. For example, Hong Kong, Liechtenstein, South Tyrol, Kashmir, Tatarstan, Scotland, San Marino, Puerto Rico, the Netherlands Antilles, Basque Country, Catalonia, Andorra and Gibraltar all have exclusive control over these functions. An unsuccessful example of people's control over health care is found in Zanzibar which has insufficient funds to adequately provide for its population's needs. As a result there have been outbreaks of epidemics due to lack of potable water and inadequate sewage and electrical systems.
While health care and social services are inherently internal affairs issues, in many cases they are a function of the state, in part, for financial reasons. In Quebec health care is within the autonomous government's jurisdiction, but Quebec has transferred responsibility for health and social services to the Canadian federal government because the financial burden was too large for the autonomous government. Similarly, the Faroese have chosen to share that power with the Danish government in order to benefit from its technology and financial resources. Others, including the people of the Aland Islands, Cook Islands, Chittagong Hill Tracts, Micronesia and Northern Ireland, have sole control over health care delivery but with the support of the state by way of subsidies.
Many autonomous governments have sole or substantial control over their economy. Development of and control of the economy is essential to building a financial base for self-governance. The study shows that there is a high correlation between an autonomous government's degree of economic control and the health of the economy, on one hand, and the level of self-governance exercised by the autonomous government on the other hand.
For example, Tatarstan's oil reserves and strong military industry positioned Tatarstan to successfully negotiate a bilateral treaty with the Russian Federation, which guarantees to Tatarstan substantial powers of self-governance not enjoyed by other members of the Russian Federation. Liechtenstein, though one of the smallest European countries, has highly profitable electronics, metal, pharmaceutical, ceramics and textile industries, as well as lucrative tourism. It is a sovereign state which has chosen a mutually beneficial associated statehood relationship with Switzerland since 1923.
Economic power can also be successfully shared. In Quebec, for example, intra-provincial business is controlled by Quebec, while inter-provincial trade is controlled by the federal government. In the Basque Country, Spain exercises control over foreign trade, banking and insurance, while the Basque autonomous government controls all other aspects of the economy. In some cases state subsidies provide autonomous governments with substantial economic control. The Aland Islands, for example, control their port and shipping industry but require and receive substantial economic aid from Finland.
Lack of a viable economy leads to dependency in many other areas, as demonstrated by the case of the Navajo Nation. Similarly, in the TAR, where the economy is controlled by the state, lack of local control over the economy, a weak economy and a low level of autonomy go hand in hand.
The power to tax is vital to the control of the economy and government services. There is a strong correlation between taxing powers and substantial autonomy. Hong Kong, Gibraltar, Micronesia, Liechtenstein, Greenland, Palestine, Puerto Rico and the Cook Islands have exclusive taxing powers. Some autonomous governments may levy taxes with respect to matters within their jurisdiction, while states often reserve the powers to tax on matters of state-wide interest. In an interesting twist, some autonomous governments use their taxing power to attract commerce by creating tax-free heavens within their jurisdiction. This is the case in Andorra. The TAR is one of the very few examples where virtually all taxing powers are within the control of the state. The TAR has the limited authority to grant tax exemptions and reductions in special situations.
Control over natural resources is an important factor in controlling one's economy and environmental integrity. Natural resources are the main source of actual or potential wealth for many peoples. By the same token, states desire full access to these resources and it is often difficult to persuade states that it is in their best interest to allow an autonomous government control over natural resources. However, the economic viability of the autonomous people is generally in the state's best interest. State concerns over potentially unsound management of natural resources can be addressed through joint regulation of natural resources linked to international standards and best practices.
Many of the highly autonomous peoples examined have control over substantial natural resources. The Aland Islanders, for example, control ownership over their land and the resources it contains and their government controls all natural resources. Such arrangements are also found in the Federated States of Micronesia and Puerto Rico. Scotland has control over its natural resources, except for oil and gas. Greenlanders have substantial control over their natural resources. However, the study, prospecting and exploitation of natural resources is jointly regulated by Denmark and the Greenland government. The people of the TAR have no control over their natural resources. This has deprived them of potential wealth and has led to environmental mismanagement.
Sound environmental policies are essential for a sustainable economy and for all beings within a territory. Further, environmental policies are of great importance to the larger state because environmental devastation often knows no boundaries. For these reasons both the people and the state usually have a stake in environmental policy.
South Tyrol, Greenland, Zanzibar, Andorra and Scotland enjoy complete control over their environmental policies. Similarly, in Hong Kong jurisdiction over environmental policy is vested in the autonomous government. In the TAR, on the other hand, the central PRC government controls environmental policy. Some autonomous arrangements, such as the Interim Agreement for Palestine, provide for adherence to international environmental standards and joint environmental impact assessments. Joint control is therefore not necessarily counterproductive, so long as it is tied to specific international standards.
Roads and other aspects of transportation can be of strategic and military importance and of vital importance to the economy. State participation in transportation may be beneficial to an autonomous government which lacks necessary financial and technological resources. However, issues of ultimate control over transportation must be considered very carefully since transportation and population influx often go hand in hand.
Only South Tyrol, Liechtenstein, the Aland and Faroe Islands, the Netherlands Antilles, Micronesia, Andorra and the Cook Islands have exclusive power over transportation. Transportation is controlled exclusively by the state in Gibraltar, Kashmir, Torres Strait Islands, the Navajo Nation, Northern Ireland and Scotland. Examples of shared control are found, for example, in the Basque Country and Catalonian where the autonomous governments have control over railways and highways which run completely within their territories.
POSTAL AND TELECOMMUNICATION SYSTEMS
Most states seek control over postal and telecommunications systems as they may have strategic and military significance. While most autonomous governments chose not to control these systems which are expensive to run, some exceptions exist. Hong Kong, the Cook Islands and the Netherlands Antilles, for example control their own postal and telecommunications systems. San Marino and Italy share a postal union but San Marino issues its own stamps which are collectors' items due to their small circulation and thus a major source of income.
LAW AND ORDER
Control over policing is essential, especially when the relationship between the people and the state has historically been hostile. In most autonomous arrangements, the people alone or jointly with the state control policing and law enforcement. For example, the Aland Islands have sole jurisdiction over their police forces and public order. So do Micronesia, Liechtenstein, Scotland, Puerto Rico, the Netherlands Antilles, Andorra and the Cook Islands.
The Faroe Islands have joint jurisdiction with the Danish government over law and order. The Faroe Islands government maintains a small police force and coast guard. The Basic Law provides Hong Kong with exclusive jurisdiction over law and order within its territory.
ADMINISTRATION OF JUSTICE
In most autonomous arrangements ultimate judicial control rests with the state. Sometimes, the people have jurisdiction over a limited area of justice administration. Only Micronesia, Andorra and Liechtenstein have an independent judiciary of their own with complete jurisdiction over all civil and criminal matters.
Some autonomous governments have their own judiciary which is linked in various ways to the state. While Puerto Rico, for example, has its own court system based on Spanish law, rather than the English law on which the US judicial system is built, the US retains some control by allowing final judgments of the Puerto Rican court to be appealed to the US Supreme Court.
In Hong Kong judicial powers are vested in an "independent" judiciary based on English common law. Hong Kong's judiciary, however, is not truly independent since the decisions of its highest court are reviewable by China's National People's Congress.
In some arrangements jurisdiction is divided. For example, the Inuit, under the 1991 Nanavut Land Claim of Canada, have control over the trial and appellate courts, while the Canadian Supreme Court has final appellate jurisdiction. Similarly, Scotland has civil and criminal courts but the highest level of civil appeals lies with the British court. In the TAR, the judiciary is entirely controlled by the PRC.
In negotiations for judicial powers consideration must be given to the quality of the judicial system of the state and to the traditional judicial system of the autonomous people. In other words, the legal system's process, its neutrality and its independence from political forces may be of more importance than the issue of who controls it.
CURRENCY AND MONETARY POLICY
Most peoples use the currency of the state. However, as with postage stamps, currency may be of symbolic significance. Some peoples have a separate currency which may be used interchangeably, at the same value, with the currency of the state, which controls the monetary policy. This includes the Holy See, Scotland, Liechtenstein, Gibraltar and the peoples of the Cook and Faroe Islands and the Netherlands Antilles. Hong Kong has its own currency which is independent of the Chinese currency.
DETERMINATION OF CITIZENSHIP
Citizenship can be of symbolic importance and can also be linked to other important issues such as immigration, land ownership, voting rights and access to state schools.
With few exceptions, autonomous arrangements provide that the autonomous people are citizens of the state. However, Tatars are citizens of Tatarstan and citizens of the Russian Federation. Similarly, the people of Zanzibar are citizens of both Zanzibar and Tanzania. Aland Islanders are dual citizens of Aland Islands and Finland. The people of Gibraltar, while not holding their own citizenship are British nationals and British Dependent Territory citizens. Hong Kong citizens and the people of the TAR are citizens of the PRC.
Foreign policy powers can be held exclusively by the autonomous government, by the state or they can be shared. While there is often an assumption that all foreign affairs powers are matters of exclusive state concern, the study shows that foreign affairs powers can be successfully divided and shared.
The interests of the state and the autonomous governments can best be met if foreign policy powers are divided in a practical manner, so as to give the state and the autonomous government those foreign policy powers which complement the other governmental powers they each hold. Autonomous governments which enjoy a high degree of internal self-governance have a substantial interest in participating in matters of foreign policy which affect their areas of self-governance. By the same token, a state may have little interest in an area of foreign policy that is related to a governmental function within the control of the autonomous government. Thus, for example, where the state has no involvement in the economy of the autonomous people, it may have little interest in the power to enter into trade treaties affecting the autonomous territory.
San Marino, Liechtenstein, the Cook Islands, Micronesia, Andorra and Tatarstan, all are economically strong entities and enjoy the highest level of control over foreign policy within the entities studied. Liechtenstein, for example, is a sovereign state, but through an autonomous arrangement has authorised Switzerland to conduct most of its diplomatic affairs. However, it retains ultimate power over its foreign policy.
Some autonomous arrangements provide for limited participation of the autonomous government in foreign policy matters. In Hong Kong, for example, foreign affairs powers are vested in the PRC. The PRC nonetheless has authorised Hong Kong to conduct certain external affairs on its own in accordance with the Basic Law. Thus, under the name of Hong Kong China, Hong Kong may develop, maintain and conclude relations and agreements with foreign states and international organisations in the areas of trade, shipping, communications, tourism, monetary affairs and culture. Hong Kong is a distinct member of a number of international organisations, including the World Trade Organization, the International Monetary Fund and the Asia Pacific Economic Co-operation.
Palestine, though not yet independent has diplomatic relations with over 100 states and enjoys UN Observer status. However, the Interim Agreement of 1995 limits the foreign affairs powers of the PLO to the areas of economic, cultural, scientific and educational agreements with other states. Greenland and the Faroe Islands are subject to Denmark's exclusive jurisdiction over foreign affairs but Greenlanders and the Faroe Islanders have the right to enter into their own trade agreements.
In many other situations, however, the autonomous government does not share in foreign policy powers on a decision making level. Some people have the right under their respective autonomy arrangements to join relevant international organisations. The Inuit, for example, are a member of the Circumpolar Conference and the Aland Islanders, the Saami and the Faroe Islanders send their own separate delegations to the Nordic Council, a regional organisation of parliamentarians from the Nordic States. This type of involvement allows the people concerned to contribute their input and views to matters of foreign relations.
In the TAR and the Xinjiang Uighur Autonomous Region, foreign policy powers are held exclusively by the PRC's central government, with no involvement by the autonomous governments.
In virtually all the autonomous arrangements studied the power of defense is within the exclusive jurisdiction of the state. Hong Kong and the TAR are examples of exclusive state control over defense. Some arrangements provide for demilitarisation of the territory inhabited by the people. A major provision of the 1991 Act of Autonomy of Aland, for example, provides that the Aland Islands will remain demilitarised. Similarly, Liechtenstein has been a neutral country since 1866 and is a demilitarised zone. Other autonomous arrangements provide for a reduction in military presence.
Control over visas may have effects on economic development and tourism. Passports may be connected to issues of immigration and also may have symbolic significance for the autonomous people. Passports and visas are mostly controlled by the state. Exceptions are found in the Aland and Faroe Islands, where passports identify the people as citizens of the autonomous government and of the state. Citizens of the Federated States of Micronesia carry their own passports as Micronesian citizens. Hong Kong issues its own visas and passports, though Hong Kong citizens have become PRC citizens. The TAR, on the other hand, has no control over passports or visas.
CUSTOMS, BORDER CONTROL AND IMMIGRATION
In the great majority of situations studied, the state controls customs, borders and immigration of foreign citizens. These powers, though, can be exercised jointly or can be divided between the state and the autonomous government. Special attention must be paid to internal immigration and to residency requirements because immigration can have a profound impact on culture and can lead to cultural destruction, especially when citizens of the larger state immigrate into the autonomous territory.
The Cook Islands, the Holy See and the Federated States of Micronesia are exceptions as they have full control over customs, borders and all aspects of immigration. While Canada has power over borders and customs on Inuit land, the Inuit may exclude non-Inuits, Canadians and foreigners from entering their territory. Canadian military exercises require Inuit agreement. Further, the Inuit have exclusive jurisdiction over deciding who is Inuit. Similarly, the Navajo Nation controls entry into its territory as well as who may reside there.
In some situations these powers are divided between the state and the people. For example, in Palestine, Israel and Palestine jointly control the borders. The Hong Kong government administers and controls customs and immigration, subject to the ultimate jurisdiction of the PRC, while the PRC administers and controls these matters in the TAR.
Adherence to human rights standards appears to be the litmus test of autonomous arrangements. In the majority of cases where the autonomous people hold substantial control over governmental powers international human rights standards are adhered to. Some newly-independent states and autonomous arrangements, including the Cook Islands, Gibraltar, Andorra and South Africa, have taken a preventive approach by expressly incorporating international human rights standards into their constitutions. Similarly some autonomous statutes, such as the Statute of Autonomy of Catalonia, require the autonomous government to protect and promote human rights.
On the other hand, where the basic needs of the people are not met and where the cultural identity of the people is not furthered by the autonomous arrangements, political instability and human rights violations are prevalent. The TAR, which holds virtually no ultimate control over governmental powers, unfortunately exemplifies this problem all too clearly.
In stark contrast to the degree of autonomy now held by the TAR, His Holiness's Strasbourg proposal seeks a level of autonomy for Tibet by which Tibetans would control all governmental powers except defence and certain foreign affairs powers. While similar models have been highly successful elsewhere, the real challenge for Tibet is how to reach a mutually acceptable agreement with China and how to secure its enforcement. The latter poses a special problem because China does not have an independent judiciary which can force the Communist Party to adhere to its commitments. It is thus essential that mechanisms be explored by which potential post-agreement conflicts can be effectively addressed. This could be done through special non-modifiable constitutional provisions for conflict resolution or through international undertakings or guarantees. Tibet's interests could also be safeguarded through express contractual provisions which would make the autonomous agreement voidable at the option of the Tibetans, in case of breach of the agreement. Such provisions would act as an incentive for full implementation of the agreement. On the other hand, they would clearly allow Tibetans to terminate an agreement which does not deliver the promised control and benefits. While such matters are extremely complex and difficult to negotiate they are worth full exploration. If China truly seeks political stability, it should be willing to participate in negotiations for an enforceable agreement which provides for substantial Tibetan autonomy.
Eva Herzer is a founding member and former president of the International Committee of Lawyers for Tibet.