Making autonomies matter: a case study on autonomy accommodation

Sarah Stephan is a researcher at the ÅIPI and also functions as the Project Manager for the project Open Doors that is focusing on gender equality, empowerment and participation in Azerbaijan.   Sarah’s research interests include European and Public International Law, in particular post-conflict governance and multilevel governance in the European Union and beyond.  Sarah holds an LL.M.  in Public International Law from Helsinki University and a Bachelor’s degree in European and Comparative Law from the Hanse Law School of the Universities of Bremen and Oldenburg.

Mariehamn 13.5.2014

In today’s globalized and interdependent world, almost all areas of life are objects of international agreements and are regulated to varying extents by international bodies. Certainly, the upward dispersion of powers to international organizations carries implications for the sub-state level. As law-makers and regulatory bodies, international organizations impact the life of states but also of sub-state entities, such as federal units or autonomies. You can read more about the impact of EU membership on the Åland Islands, as an example, here and here. 

But how do international legal frameworks regulate the co-operation between dissimilar state entities with ‘actor capacity’? What capacities do individual international organizations have to institutionally accommodate autonomies? I have recently approached these question in an article published in the report series ‘European Autonomy and Diversity Papers’ at the European Academy in Bolzano. The article, which I wish to summarize here, covers the position of the Nordic Autonomies in the Nordic Council and the Nordic Council of Ministers. The article can be downloaded here. 

The Åland Islands, the Faroe Islands and Greenland do not only share some of the geographical particularities that shape island regions, they are also home to three linguistic minorities, which are distinct from the majority populations inhabiting the mainland states to which they belong, in terms of language, culture and history. Autonomy has been chosen as the appropriate form of minority governance in the case of all three Nordic autonomies and has through these living and rather well-functioning examples acquired a certain permanence and acceptance in the Nordic context as a valid instrument for accommodating autochthonous minorities. The institutional position occupied by the autonomies is proof to this entrenchment of autonomy in the Nordic context. The fact that the Nordic autonomies occupy institutionalised positions within Nordic co-operation (Norden) is all the more interesting in view of the fact that Nordic integration is currently experiencing a revived interest, as manifested in Gunnar Wetterberg’s proposal for the creation of a Nordic federation and Johan Strang’s report proposing a less synchronized pace of integration within what he calls “Nordic communities”.^[1] Autonomy and minority protection are thereby situated within a lively and highly topical Nordic integration debate.

The Nordic Council and the Nordic Council of Ministers are the political bodies governing the co-operation between the Nordic countries, Denmark, Norway, Sweden, Finland, Iceland, and the three autonomous, or self-governing territories, the Åland Islands in Finland as well as Greenland and the Faroe Islands in Denmark. Nordic co-operation encompasses an inter-parliamentary tire, the Nordic Council, as well as an inter-governmental tire, the Nordic Council of Ministers. Nordic co-operation is broad and encompasses legal, cultural, social and economic co-operation, co-operation on transport and communications and co-operation in the area of environmental protection and can be described as a comprehensive regional integration enterprise. The fundamental difference between the Nordic Council and the Nordic Council of Ministers is the fact that the Council makes no binding decisions. It acts largely as an advisory body to the Council of Ministers and both tiers of governance are closely integrated and have extensive mutual reporting obligations. Nordic co-operation is today governed by the Helsinki Treaty of 1962. Since 1962 the Helsinki Treaty has been amended multiple times. In 1971 Nordic co-operation opened up to the Faroes and Åland. Greenland became a self-governing territory first in 1979 and was effectively admitted to Nordic co-operation in 1983, when the status of the other two autonomies was also elevated. In my recent article I review the processes that have led to these revisions as well as subsequent adaptations that have focused on its effective implementation rather than the legal-institutional framework as such.

The issue of accommodation for the autonomies has three underlying dimensions that were discussed by a number of expert committees since the late 1960s. These dimensions or questions pertain (1) to the status of the ‘applicants’ and the quality of the autonomy regimes, (2) to implications of international law and (3) to the modalities of possible accommodation. The first dimension, the nature and legal status of the autonomies as such, does not feature very much in the discussion on accommodation and it seems that it was never questioned that the Nordic autonomies qualified for some sort of accommodation in the Nordic Council. It has been evident all along that neither of the Member States was opposed to the idea of accommodation as such. A further evaluation of the autonomy regimes did not fall within the expert committees’ mandates. The status of the ‘applicants’ nonetheless was a crucial factor in respect of the second area of concern, the international law dimension, which arises essentially from the fact that an international organization based on a treaty between states was now to accommodate autonomies in one way or another. So, while the specific autonomy regimes were not discussed in great detail, the ‘collision’ of an international framework with two autonomy regimes proved to be the core concern for the expert committees.

The international law implications were a decisive factor in determining which institutional modalities for accommodation were feasible. What turned out to be the major crux in the subsequent discussions was whether the autonomies could accede to the Helsinki Treaty and become independent members of the Nordic Council. The expert group working on the matter in the late 1960s, the so-called Kling Committee, framed this as a question of equality between the sovereign Member States and the autonomous territories. This alternative was considered as highly problematic due to the very nature of autonomy, i.e. the limited capacity to enter into international relations. Although both the Faroes and Åland hold very broad and notably exclusive law-making powers certain questions remain within the exclusive domain of the State, including foreign affairs, in whole or in part. Thus, the autonomies were not considered to fit in neatly with the states that had concluded the Helsinki Treaty. The international law implications weighed too heavily and ultimately posed too many technical challenges to be resolved within the framework of the Helsinki Treaty at the end of the 1960s which has not changed today albeit shifting notions of sovereignty and international legal personality. Although the autonomies were not admitted to full membership, the solution carved in 1969 made way for direct participation in Nordic co-operation. Indeed, membership was not considered a prerequisite for representation and full voting rights in the Council. Representatives elected from the parliaments of the autonomies were included in the national delegations and thus represented indirectly in the Nordic Council.

Following many of the considerations of the Kling Committee, the later ‘Petri Committee’ worked its way equally successfully around full membership and found solutions for more extensive accommodation without opening up for accession. Its work has led to the creation of own delegations for the autonomies and at least opened the doors to all committees and to the Council of Ministers, which has been established in 1971. Decision-making in the Council however, is a door that remains closed for the autonomies.

While the legal framework for the autonomies’ co-operation within Norden has remained unchanged since 1983, more recent efforts to develop the structures for accommodation have focused on the implementation and engagement of the autonomies on the day-to-day level, within the multitude of sub-programs administered under the roof of Norden. What is clearly visible from the latest official review of the autonomies’ status in 2006 is that there is a high level of engagement, not only by the autonomies but also by the Nordic Council and the Nordic Council of Ministers. The autonomies, and to a large extent also Denmark, have played the most proactive roles in initiating the processes outlined above. Nonetheless, the Nordic Council and the Nordic Council of Ministers have shown the willingness and capacity to react and adapt the institutional framework and practices, although denying accession and full membership. The modalities for accommodation have been discussed with an increasing level of detail, in deliberative processes including the autonomies themselves. Norden has shown that it in fact has the willingness and capacity to deal with the issue of autonomy accommodation and, most importantly, to adapt its institutional framework to allow for representation (with respect to the Nordic Council) and participatory structures (with respect to the Nordic Council of Ministers).

In essence, today all elected delegates on the Nordic Council have equal status; they are entitled to hold any office, whether they have been elected by a regional or a national parliament. They hold full voting capacity in the Council Plenary and committees they are part of, irrespective of the legislative competences of their ‘home’ parliaments. In order to prevent exclusion, access to the committees and participation in their work is guaranteed even when these lack elected delegates from the autonomies. Although the autonomies as such have no guaranteed place in the Council’s Presidium and are not included in the rotation of the Presidency, they are not prevented from holding these high-profile offices. In fact, an elected member from Åland held the Presidency for Finland in 1997.  About his experience as the President of the Nordic Council Olof Salmén has said that Åland was well accepted, in his words “almost alike the Nordic great powers”.[2] His statement suggests that he did not feel forced to discard his Ålandic identity when filling the Finnish seat. The General-Secretary of the Nordic Council has emphasized that the autonomies are able to participate in practically all contexts of Nordic co-operation, the Council of Ministers included, and that they make good use of these opportunities.^[3] It should be added here that the parliaments of the indigenous Saami in Finland, Norway and Sweden have observer status with speaking rights during the general debates in the Plenary of the Council or as otherwise determined by the Presidium. The Nordic Council has thus found different ways of accommodating different groups and entities.

With regard to the Nordic Council of Ministers, the autonomies are neither members nor mere observers but participants. They have been given institutional access to influence and shape decisions, which are not per se binding on the autonomies, to which they may later accede however. They of course can also exert influence on their national governments within the fora provided for internally and by virtue of national legislation. It has been noted that today the autonomies indeed participate in shaping the national programmes during their respective countries’ presidencies.^[4]

The Nordic Council’s General-Secretary describes the system of accommodation found for the Nordic autonomies in Norden as one of the broadest to be found.^[5] Nonetheless, it seems that there is space for yet more extended forms of co-operation even without full membership. As former General-Secretary Clement proposed for instance, a Member State could explicitly be provided with the possibility of leaving its vote in the Council of Ministers to an autonomy government, at its own discretion. The current legal framework does not prevent such arrangements. However, what can be drawn from the processes of identifying appropriate forms of accommodation is that the Member States jumped into action first when the legal framework explicitly provided for autonomy accommodation and then after the scope and limits of the alternatives had been carefully analysed. In this respect, legislation might not always be strictly necessary but of course it is both a guarantee for the autonomies and the member states that all entities abide by the same rules.

While the scope for participation and indeed representation of the autonomies in the institutional framework for Nordic co-operation is broad, the limits of accommodation will always remain tied to the domestic frameworks, i.e., the internal delimitation of competences between the centre and the autonomy. The degree of sovereignty exercised by the Nordic autonomies and their capacity to conduct international affairs is determined internally. Denmark has concluded agreements with both the Faroe Islands and Greenland and provided their governments with the power to conclude certain international agreements on behalf of the Kingdom of Denmark. However, corresponding powers have not been transferred to the Åland Islands. These concerns are not necessarily unmanageable from a legal perspective, however, they carry heavy implications as to the practicality and feasibility of full membership. Considering Norden’s broad areas of co-operation and the complexities of each autonomy arrangement, a case-by-case assessment of whether an autonomy, and which autonomy, may conclude an international agreement would require a far-reaching and resource-intensive extension of Norden’s mandate. The power to interpret the autonomy legislation in light of the Helsinki Treaty has not been transferred to any organ of Nordic co-operation. Norden does neither maintain its own justice system to review such decisions in case of conflict, or any other conflict-resolution body for that matter.

However, Nordic co-operation has gained new impetus in recent years and it remains to be seen where Norden is moving and whether this will also necessitate changes with regard to the autonomies’ position.

The proposal of Swedish historian Gunnar Wetterberg to create a Nordic federation has attracted considerable attention, also within the Nordic Council and motivated others to discuss the possibilities for creating yet closer political ties between the Nordic countries. Wetterberg himself does not dwell upon the position of the autonomies within a potential federation but he does not fail to note that this is one of the most important aspects of any negotiations about a future federation. Thus far, the Nordic autonomies, the Nordic countries and the Nordic Council of Ministers (and possibly the Nordic Council) cannot be described as competing levels of governance, they are complementary at best.

Norden is a platform for co-operation. Federal or supranational decision-making is a different matter and poses different demands on representation and democratic participation that are more complex to solve. After almost 20 years and the adaptation of the national constitutional, as well as local legislative frameworks, Åland’s EU membership is still experienced as problematic due to a lack of representation and genuine participation in decision-making processes at the European level. All that we know now is that Nordic co-operation has proven adaptable also in light of major structural changes and that the spirit of co-operation has also meant an accommodating attitude towards the autonomies, which can be expected to be decisive also for future solutions and should not be disregarded as an example for others. The autonomy regimes of all three Nordic autonomies have developed considerably since the early days of Nordic co-operation and will continue to do so, which also suggests that Norden needs to continue an adaptable approach and engage in order to re-negotiate the best alternatives for accommodation. At this point any development towards a federal or supranational arrangement seems distant. What we are left with to date is a diverse picture that speaks of representation, participation, and institutional accommodation beyond the traditional conventions of ‘all in’ or ‘all out’.

International organizations, once determined to offer accommodation to sub-state entities, will have to carve their own institutional solutions for hosting entities with different degrees of sovereignty. Depending on the mandate and resources of each international organization, these differences might be more or less decisive, so that in some contexts no more than observer status can be offered, while in others decision-making may be opened up for sub-state actors. Both states and international organizations are gate-keepers in this context, or more positively formulated, doors-openers. After all, international organizations cannot simply be considered as the sum of their member states, but are catalysts for change in their own right. The ability of international organizations to engage and possibly accommodate autonomies within their structures can affect our view on autonomy, not least in processes of conflict resolution where accommodation of that kind might be a decisive factor averting secessionist claims.

Sarah Stephan